GLORIA M. NAVARRO, Chief District Judge.
This represented habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision on the merits as to the remaining grounds.
Petitioner Lusan Rahman challenges his 2007 Nevada state conviction, pursuant to a jury verdict, of attempted murder with the use of a deadly weapon, extortion, discharging a firearm out of a motor vehicle, and discharging a firearm at or into a structure. He challenged the conviction on direct appeal and in a state post-conviction petition.
In his first ground for relief, Rahman challenges the sufficiency of the evidence on the conviction for attempted murder with the use of a deadly weapon. He alleges that the evidence was insufficient to establish that he acted with the deliberate intention to unlawfully kill another person.
The Court accordingly will summarize trial evidence relevant to this ground as well as to other grounds in the petition.
The evidence at trial included the following.
As backdrop, the Las Vegas accounting firm of Main Amundson hired Lusan Rahman as a staff accountant in August 2006. As ninety days from his hiring approached, the firm decided to fire him.
Partner John Amundson called Rahman into his office on Tuesday, November 7, 2006, for a closed-door meeting with Amundson and the office manager, Judi Hansen.
According to Amundson's testimony, after he told Rahman that he was being let go, Rahman became violently angry and erupted into a profanity-laced tirade. He grabbed his chair, threw it down, and said he was going to kill Amundson and then his family. Rahman grabbed Amundson's picture of his wife and two children, said that they meant nothing to him and were "history," and threw it against the wall shattering the glass. He then said again that he was going to kill them. Rahman indicated that he would "do this to you" forming the shape of a gun with his hand. He also said that he knew people that he could pay $2,000 to break Amundson's kneecaps, and that he would do that.
Judi Hansen similarly testified that Rahman erupted into an angry, profanity-laced tirade, that he picked up a chair, that he threw the picture of Amundson's family against the wall, and that he threatened Amundson and his family. The only specifics of the threats that she could recall at trial was the threat that Rahman could pay someone $2,000 to break Amundson's knees and the implied threat of Rahman forming the shape of a gun with his hand and holding it to his head. She testified that she was "shocked," "astonished," "scared . . . absolutely," "shaken," and "rattled" at the time and thus did not have a better recall of more specifics of the threats. She remembered the "enormity of [his] anger" and that "he was absolutely threatening." She testified that "[w]hat was absolutely vivid to me was being trapped in that office." She therefore sought to get the office door open and to get Rahman out of the office to where more employees were present, hoping that he would calm down.
John Amundson's administrative assistant, Arlene Henrikson, first heard a loud boom and crashing noise coming from Amundson's office. According to her testimony, the door then flung open and Rahman came "storming out," "dark with anger" and spouting obscenities. She heard Rahman threaten Amundson that he could have his kneecaps broken for $2,000. She called 911. When she looked in Amundson's office "everything that was on his little round conference table was smashed and broken, including the picture — of his kids."
Amundson's partner, James Main, had a corner office at the other end of the building. According to Main's testimony, he heard the commotion coming from the direction of Amundson's office, and his assistant said to him that he better get down there. As he approached, he observed that Rahman "was very upset and mad" and was "using profanities about being fired." When Main tried to calm him down, Rahman threatened him. Rahman formed a gun with his hand, pointed it at Main's head, and said that he could have him killed for $2,000. He then also said that for $2,000 he could have his knees broken.
The firm's personnel ultimately succeeded in getting Rahman to return his electronic office key and leave the building. Main trailed Rahman out to make sure that he did not vandalize any employee vehicles in the parking lot. (E.g., ECF No. 27-16, at 6 & 17.)
The next day, Wednesday, November 8, 2006, John Amundson received a call from Rahman at the office. According to Admundson's testimony, Rahman wanted to rescind the background investigation authorization that he gave the firm during the hiring process. Amundson said that he would see what he could do. He then said that he was upset about the prior day's events. Rahman responded that he meant every word of what he had said and that "I'm coming to f-king get you guys."
Amundson contacted the police again, and the firm hired a private security guard.
The firm was located in a two-story office building at the corner of Indigo Drive and Park Run Drive. Indigo runs north-south, and Park Run runs basically east-west.
The office building was located on the southeast corner of the intersection. The west side of the building paralleled and was adjacent to Indigo, with no other intervening large structures between the building and the street. The building was set down into a dip or depression, such that a straight line drawn from street level on Indigo would intersect the building approximately eight feet up on the exterior of the first floor.
The firm occupied the second floor. A stairwell was located at the southwest corner of the building, with a second-story window facing west.
John Amundson's office was immediately to the north of the stairwell, also with a window facing west and overlooking Indigo.
James Main's office was located at the other end of the building, at the northwest corner overlooking both Indigo and Park Run. (ECF No. 27-16, at 17-18.)
At approximately 10:45 a.m. on the morning of Thursday, November 9, 2006, John Amundson was in his office, leaning back in his chair on the telephone. He heard a loud popping sound which made him think initially of rocks hitting the exterior of the building. Then as he sat up he saw bullet holes in his window. As he admitted unwisely, he looked out the window, which faced west overlooking Indigo. He saw Lusan Rahman's car stopped on Indigo facing south with Rahman leaning out the driver's side window looking up at the building, with the morning sun illuminating his face. Hearing others in the office yelling for everyone to get down, Amundson then dove for the floor.
Arlene Henrikson testified that she was in CPA Alice Teevens' office talking to Teevens at approximately the same time. Teevens' office was the next office, with the next west-facing window, to the north of Amundson's office and window. Henrikson was standing at Teevens' desk facing toward the window. She heard a succession of gunshots, and when she looked out the window she saw "poofs of smoke" coming from the area of what she recognized to be Rahman's green car. She did not look long enough to see who was in the vehicle because she also dove for the floor. She then crawled out into the hallway and called 911.
James Main testified that at approximately the same time, he was sitting at his desk in his corner office, which had his body oriented facing south. After he heard several gunshots, he looked out his west-facing window that overlooked Indigo. He saw Rahman's vehicle driving slowly southward on Indigo.
According to his testimony, Main ran out of his office yelling for everyone to get down, and he began a call to 911 until he learned that Henrikson already was on the line with 911. Only a few minutes later, as firm personnel were checking on everyone and watching to see if Rahman was going to come back, the receptionist told Main that Rahman was calling for him. When he took the phone, Rahman told him that "the next bullet was for me, and that if I put $100,000 in his bank account, he would cancel my bullet."
Fearing for his family, Amundson had his children pulled from school and escorted to the office after the police arrived; he subsequently was able to reach his wife; and they all sheltered in place at the office with the firm's personnel. Everyone stayed inside at the office for another three hours until Rahman was in custody.
Seven bullet holes were found in the building by the crime scene analyst after the shooting. Bullets collected in or from the building and the casings recovered were for a large caliber round, specifically .45 ACP caliber rounds.
One of the large caliber bullets penetrated the western exterior wall to John Amundson's office and then passed completely through his computer monitor. Amundson testified that if he had been sitting up working at his computer rather than leaning back talking on the phone, he would expect that the bullet would have hit him in the head. According to his testimony, the path of the bullet was in line with where he typically would have been sitting while doing accounting work at the computer.
Two bullets passed through Amundson's office window, and another bullet hit the stucco exterior several feet below his window. According to his testimony, one of the bullets that passed through the window made a "pretty big hole," then passed across the location of two guest chairs, passed "cleanly" through the opposite wall, went through the area where Henrikson sat, hit the ceiling in the area beyond that, and then hit the opposite wall on the far side of the office. Judi Hansen testified that a bullet hole in Amundson's window was "about halfway up" the window, such that it would have hit her in the head if she had been standing "[w]here I always stand."
Arlene Henrikson testified that a bullet that penetrated through the interior wall then "reflected" off the ceiling tiles and bounced into the conference room. According to her testimony, "it would have been a head shot to me" if she had been standing there or walking around the corner at the time.
Three more bullets hit the exterior of the stairwell that was immediately adjacent to Amundson's office. Two passed through the west-facing stairwell window. One then struck the east interior wall leaving a pock mark on the east exterior wall of the building. The other passed through the ceiling tiles. The third bullet lodged in the steel frame of the west-facing window. Amundson testified that these bullets struck or passed "only a matter of a few feet" from where he was sitting at the time.
None of the bullets hit the exterior of the roof of the building.
The crime scene analyst recovered six ejected casings on Indigo in the southbound lanes. Inside, he recovered one bullet next to the conference room door on the second floor. The police later recovered a second bullet from Amundson that he indicated that he found behind the door in his office after the crime scene analyst had left.
Rahman was arrested later on the day of the shooting after he drove up in the green Toyota back at his apartment complex, where the police had been waiting for him. (ECF No. 27-15, at 12-14 & 20.)
Rahman's brother consented to a search of the car, which was registered in his name. The police recovered: (1) two ejected .45 ACP casings on the passenger floorboard; (2) a Tanfoglio .45 ACP semiautomatic pistol inside a gun case that was under the front passenger seat; (3) a box of .45 ACP cartridges in the glove box, with 27 of the original 50 remaining; and (4) a pair of gloves, one from the driver's seat and the other from the glove box.
The firearms and tool marks expert testified that the markings made from firing and ejection of test rounds matched those on the eight casings recovered. He further testified that the rifling impressions made on bullets expended during test firing matched those on the two bullets recovered from the crime scene. That is, the bullets recovered from the scene were fired from the Tanfoglio .45 recovered from the vehicle that Rahman was driving.
A fingerprint matching one of Rahman's fingerprints was recovered from the plastic holding the rounds in the ammunition box.
Lusan Rahman testified at trial.
Rahman admitted that he shot the Tanfoglio .45 at the Main Amundson offices on November 9, 2006. He admitted specifically that he fired the shots that produced the bullet holes testified to by the State's witnesses.
He testified at one point that "I got out, and I sprayed my gun toward — and toward the roof mainly . . . [but] I did it so fast, I guess — I guess some bullets went through the windows," which he attributed to "bad aim."
However, only shortly thereafter, he testified, on direct, as follows:
ECF No. 28, at 38.
Rahman admitted on cross that he knew that Amundson would be in his office on that date. He later testified that he "guess[ed]" that he fired at that specific side of the building because "Mr. Amundson was there," in order to "kind of send my message toward him I guess." He ultimately admitted that he fired the bullets into the "area" of his office.
He denied, however, that he aimed for Amundson:
ECF No. 28, at 43.
Rahman further admitted that he knew that the bullets could go through a window.
Rahman testified that he learned to handle the gun over a year-and-a-half period while living in Texas. They lived in open country, and he would shoot the gun out in the backyard. He testified that he would shoot at a building, and he maintained that the shots would not go through. He testified that the gun had "been sitting there" unused thereafter for five years.
Rahman admitted that he became angry when he was fired on November 7, 2006, that he broke the framed picture of Amundson's family, and that he said that he could pay someone to break Amundson's kneecaps.
He denied, however, threatening to kill Amundson or his family.
Rahman variously admitted and denied that he made the figure of a gun with his hand and pointed it at Amundson. He ultimately testified that he formed his hand into a purportedly different figure.
Rahman admitted saying in his telephone call to Amundson on November 8, 2006, that he meant everything that he said the prior day.
He maintained, however, that what he meant was that he had meant a statement the prior day that he was going to sue the firm. He denied that he made any threats in the call.
Rahman admitted calling James Main after the shooting.
He denied, however, that he threatened Main and demanded money, although at one point he responded initially to a question on direct with: "No. I don't think so. No."
After considering the foregoing evidence, the jury found Rahman guilty on all counts.
The Court will note any further factual particulars relevant to specific grounds in the discussion of those grounds.
Governing Standard of Review
When the state courts have adjudicated a claim on the merits, the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating the state court ruling that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. 563 U.S. at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 563 U.S. at 181-88.
A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." 540 U.S. at 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.
A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, AEDPA requires substantially more deference:
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.
The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 563 U.S. at 569.
Ground 1: Sufficiency of the Evidence as to Attempted Murder
In Ground 1, petitioner alleges that he was denied a right to due process of law in violation of the Fifth and Fourteenth Amendments because the evidence was insufficient to sustain the conviction for attempted murder with the use of a deadly weapon. He urges that there was insufficient evidence of a deliberate intent to kill on his part.
The state supreme court rejected the claim presented to that court on the following basis:
ECF No. 11-1, at 37-39 (citation footnotes omitted).
The state supreme court's rejection of the insufficient evidence claim was neither contrary to nor an unreasonable application of clearly established federal law as determined by the United States Supreme Court.
On a challenge to the sufficiency of the evidence, the habeas petitioner faces a "considerable hurdle." Davis v. Woodford, 333 F.3d 982, 992 (9th Cir. 2003). Under the standard announced in Jackson v. Virginia, 443 U.S. 307 (1979), the jury's verdict must stand if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. E.g., Davis, 333 F.3d at 992. Accordingly, the reviewing court, when faced with a record of historical facts that supports conflicting inferences, must presume that the trier of fact resolved any such conflicts in favor of the prosecution and defer to that resolution, even if the resolution by the state court trier of fact of specific conflicts does not affirmatively appear in the record. Id. The Jackson standard is applied with reference to the substantive elements of the criminal offense as defined by state law. E.g., Davis, 333 F.3d at 992. When the deferential standards of AEDPA and Jackson are applied together, the question for decision on federal habeas review thus becomes one of whether the state supreme court's decision unreasonably applied the Jackson standard to the evidence at trial. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005).
This Court has summarized trial evidence relevant to the sufficiency of the evidence at length.
On the one hand, the jury had before it: (1) testimony by John Amundson that Rahman made multiple threats directly to him during a violent rage on November 7, 2006, including that he would kill Amundson and his family; (2) testimony by Judi Hansen that she recalled that Rahman was violent, angry and threatening and that he threatened to have someone break Amundson's kneecaps and formed a gun with his hand, but that she had been so shaken by the experience at the time that she was unable to recall further specifics; (3) corroborating testimony by multiple other witnesses as to Rahman's angry rage; (4) testimony by James Main that Rahman also threatened, inter alia, his life during the same overall incident; (5) testimony by Amundson that Rahman stated during a telephone call the next day that he had meant everything that he had said and that he was "coming to f-king get you guys;" (6) substantially irrefutable proof that Rahman fired seven shots with a large caliber semiautomatic pistol during business hours not into or around the roof of the office building but instead within feet of where Amundson typically worked, including one shot that hit and penetrated essentially dead center at where Amundson typically would have been sitting at his computer workstation; (7) testimony by Main that Rahman called him a few minutes after shooting multiple bullets into the immediate area of Amundson's office to tell Main that the next bullet would be for him if he did not pay Rahman $100,000; and (8) evidence that Rahman had experience shooting the large caliber firearm that he used, which originally had been owned by him. The evidence, over and above that bearing on intent, further left no room for doubt that Rahman was the shooter.
On the other hand, the jury had before it Rahman's equivocal, inconsistent, and contradictory self-serving trial testimony and statements to the police, admitting to what in the main could not be refuted and denying more extensive culpability. Rahman testified at trial variously that he fired his gun toward the roof mainly but he guessed that some bullets went through the windows due to bad aim, that he aimed at the window glass because he "probably" wanted to break the glass but he did not remember or know what he was thinking, and finally that he thought that Amundson would be behind the exterior wall that as a matter of fact he fired into and that he fired the bullets into the area of his office to send a message.
The jury thus had before it, on the one hand, testimony as to threats by Rahman to kill Amundson and strong circumstantial evidence based upon where he fired seven bullets from a large caliber weapon and, on the other, multiple equivocal and contradictory statements by Rahman as to where he was aiming and why.
It was within the province of the jury to follow the very clear trail left by his bullets, after he previously had threatened to kill Amundson, rather than his words after the fact.
Petitioner nonetheless urges that the only evidence of Rahman's specific intent to kill Amundson was a detective's testimony that he believed that Rahman was minimizing his intent and involvement in his statements to the police. The Court is not persuaded that such is the case. First, the jury did not need this testimony from the detective to draw a permissible inference in assessing Rahman's credibility that he potentially was seeking to minimize his intent and culpability in his statements and testimony. Rahman's own equivocal, inconsistent, and contradictory trial testimony provided ample basis from which to draw such a permissible inference. Second, more to the point, the jury quite properly could infer specific intent from (a) Rahman's express threats to kill Amundson followed by (b) his actions in firing seven large caliber rounds all striking within feet of the area where Amundson normally would be sitting during office hours, including exactly where he would be sitting. Petitioner simply rules out, without any apposite supporting citation, the jury's ability to infer the required express malice from circumstantial evidence. Under Nevada state law, the express malice required to support a conviction for attempted murder quite clearly can be inferred from circumstantial evidence. E.g., Washington v. State, 376 P.3d 802, 808-09 (Nev. 2016)(the express malice required for attempted murder could be inferred from circumstantial evidence where the defendant fired a handgun six to seven times into an inhabited apartment at 4:35 a.m.).
Ground 1 accordingly does not provide a basis for federal habeas relief.
Ground 2: Alleged Prosecutorial Misconduct
In Ground 2, petitioner alleges that he was denied rights to due process and a fair trial in violation of the Fifth and Fourteenth Amendments when the State did not produce an audiotape of Rahman's November 9, 2006, call to James Main until late in the trial after Main already had testified.
As backdrop, Main testified at trial that Rahman called him a few minutes after Rahman fired multiple shots into the area of John Amundson's office. According to Main's testimony, Rahman told Main that the next bullet would be for him unless he paid Rahman $100,000.
Main gave substantially the same testimony on this point at the November 28, 2006, preliminary hearing. He testified also at that time (as well as substantially similarly at trial) that Arlene Henrikson handed him a small portable tape recorder during the call, that he recorded the remainder of the call from Rahman, that he handed the phone and tape recorder back to Henrikson after the call, and that he believed that Detective Mayo with the police took the tape later that afternoon.
It does not appear that the tape was introduced into evidence at trial by either party.
Nor was a defense objection or request for relief made with regard to the tape.
On direct appeal, Rahman's fast track statement asserted as follows in pertinent part:
ECF No. 11-1, at 15 & 19-20.
No Claus affidavit is attached to the copy of the fast track statement filed with the state court record exhibits in this matter.
The State's fast track response reflected that no Claus affidavit was attached with the copy of the fast track statement received by counsel for the State at that time.
In the federal amended petition, counsel asserted that counsel to date had "not been able to locate a copy of the referenced `affidavit.'" Counsel reserved the right to supplement the exhibits if a copy was located. No such copy has been filed. (ECF No. 26, at 17 n.6.)
It has not been demonstrated by petitioner, who has the burden of proof on federal habeas review, that the Claus affidavit actually was a part of the record presented to the Supreme Court of Nevada on direct appeal. The most probable inference from the record presented to this Court is that it was not.
No evidence was presented to the Supreme Court of Nevada in the record on direct appeal that the tape contained exculpatory information.
No evidence was presented to the Supreme Court of Nevada in the record on direct appeal that the tape contained impeachment information.
Nor does it appear that any evidence was presented to the Supreme Court of Nevada in the record on direct appeal whatsoever as to the actual content of the tape, one way or the other in terms of being useful to either the State or defense.
The Supreme Court of Nevada rejected the claim presented to that court on direct appeal on the following basis:
ECF No. 11-1, at 39 (citation footnotes omitted).
Petitioner has not carried his burden on federal habeas review of demonstrating that the state supreme court's rejection of this claim on direct appeal was either contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court or was based upon an unreasonable determination of fact "in light of the evidence presented in the State court proceeding" under § 2254(d).
No actual record evidence was presented to the Supreme Court of Nevada on direct appeal as to the circumstances of the alleged late production of the tape.
Moreover, as noted, no record evidence was presented to the Supreme Court of Nevada on direct appeal that the tape contained exculpatory evidence such as would give rise to a potential claim under Brady v. Maryland, 373 U.S. 83 (1963).
No record evidence was presented to the Supreme Court of Nevada on direct appeal that the tape contained impeachment evidence such as would give rise to a potential claim under Giglio v. United States, 405 U.S. 150 (1972).
No record evidence was presented to the Supreme Court of Nevada on direct appeal in any respect as to the actual content of the tape.
Petitioner has not presented this Court with any apposite Supreme Court precedent establishing that alleged late production during trial of a piece of evidence that neither party used thereafter deprives a defendant of due process because it denies defense counsel the opportunity to evaluate the evidence and plan a defense strategy taking its — wholly unspecified to the reviewing court — content into account. Nor is the Court aware of any Supreme Court precedent upholding such a bare claim with no showing of materiality.
The Court further has no difficulty concluding that the state supreme court's rejection of this factually unsubstantiated claim on direct appeal was not an unreasonable application of the general due process standard applicable to prosecutorial misconduct claims.
In the federal reply, petitioner seeks to rely on testimony by defense counsel at the state post-conviction evidentiary hearing, four years after the state supreme court's decision on the merits of this claim on direct appeal. This testimony was not in the record before the Supreme Court of Nevada on direct appeal when it decided this claim on the merits, and it is that decision that petitioner challenges in Ground 2 on federal habeas review.
Ground 2 accordingly does not provide a basis for federal habeas relief under the governing standard of review in AEDPA.
Ground 3: Effective Assistance of Counsel — Lesser Included Offense Instruction
In Ground 3, petitioner alleges that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to request an allegedly lesser included offense instruction on the attempted murder charge of assault with a deadly weapon and appellate counsel failed to raise the issue on direct appeal.
Standard of Review Applicable to Ground 3
Petitioner urged for the first time in the federal reply that the Court should consider Ground 3 de novo rather than under AEDPA's deferential standard of review.
As backdrop, respondents did not challenge the exhaustion of the claims in Ground 3.
Petitioner did present claims in his pro se amended state post-conviction petition that he was denied effective assistance of counsel because trial counsel did not request a lesser included offense instruction as to attempted murder and appellate counsel did not raise the issue on direct appeal.
State post-conviction counsel did not address the claims in his supplemental points and authorities, however.
At the state post-conviction evidentiary hearing, post-conviction counsel asked trial counsel only one question, on redirect, about a lesser included offense instruction:
ECF No. 29-13, at 47. Post-conviction counsel thereupon concluded his redirect examination of trial counsel. He did not refresh counsel's recollection with the trial record, which reflected that no such instruction was requested. Nor did he pursue any further inquiry in that regard.
In his closing argument at the evidentiary hearing, post-conviction counsel did not provide any argument with regard to a lesser included offense instruction.
In the fast track statement on the state post-conviction appeal, post-conviction counsel did not include within the statement of issues any specific reference to a failure by trial counsel to request a lesser included offense instruction or a failure by appellate counsel to raise the issue. The statement of issues instead focused on: (a) trial counsel's failure to make contemporaneous objection as to the three issues that were raised on direct appeal; and (b) appellate counsel's failure to make a record on the third direct appeal issue.
The fast track statement referred to a failure to request a lesser included offense instruction only twice. Each time, the focus of the passing reference was on defense counsel's failures to recall at the evidentiary hearing and his alleged strategy of not objecting at trial.
The Supreme Court of Nevada affirmed the denial of post-conviction relief in a brief two-page order in which the court concluded that "the district court did not err by rejecting Rahman's ineffective-assistance claims." The court did not expressly include the claims presented now in Ground 3 within its list of contentions presented by petitioner, and the court did not otherwise expressly discuss such claims. Nor did the court state that any such claims were procedurally barred or that they were not being considered for other reasons. The order simply did not reference any such claims in any respect.
On federal habeas review, petitioner did not allege in the counseled first amended petition that Ground 3 was subject to de novo review. Petitioner instead alleged that any contrary state court ruling was contrary to or an unreasonable application of clearly established federal law and/or involved an unreasonable factual determination, under the deferential standard of review applicable under AEDPA.
Petitioner maintained for the first time in the federal reply, after respondents had answered Ground 3 under the AEDPA standard, that the ground instead was subject to de novo review because the state supreme court allegedly had not decided the claims on the merits.
The Court is not persuaded on the showing and arguments made that Ground 3 is subject to de novo review.
In Johnson v. Williams, 568 U.S. 289 (2013), the Supreme Court rejected the proposition that de novo review is automatically required whenever a state court does not expressly address a claim in a decision that discusses other claims:
568 U.S. at 298 (emphasis in original).
The Supreme Court referred to, inter alia, two such situations where state courts often did not discuss claims referenced in passing in a party's appellate filings:
568 U.S. at 299-300 (additional citations and statistical reference footnote omitted).
The Supreme Court accordingly held that federal courts must apply a "strong [presumption] that may be rebutted only in unusual circumstances"
568 U.S. at 301.
In the present case, it does not appear that "unusual circumstances" are presented that would overcome the presumption required by Williams. The Supreme Court of Nevada simply did not expressly discuss claims as to which Rahman had made only "passing reference" in his fast track statement on the post-conviction appeal without any argument specific to the claims. Absent unusual circumstances not demonstrated here, such a common situation is subject to the Richter-Williams presumption.
The Court therefore reviews Ground 3 under AEDPA's deferential standard of review.
Effective Assistance of Trial Counsel
The Court looks first to the state courts' rejection of the claim that trial counsel rendered ineffective assistance because he did not request an allegedly lesser included offense instruction on the attempted murder charge of assault with a deadly weapon.
On petitioner's claims of ineffective assistance of counsel, he must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). He must demonstrate that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's defective performance caused actual prejudice. On the performance prong, the issue is not what counsel might have done differently but rather is whether counsel's decisions were reasonable from his perspective at the time. The court starts from a strong presumption that counsel's conduct fell within the wide range of reasonable conduct. On the prejudice prong, the petitioner must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). On the performance prong in particular, "[e]ven under a de novo review, the standard for judging counsel's representation is a most deferential one." Richter, 562 U.S. at 105. Accordingly,
Pinholster, 563 U.S. at 196. See also Richter, 562 U.S. at 109-10.
When the deferential review of counsel's representation under Strickland is coupled with the deferential standard of review of a state court decision under AEDPA, Richter instructs that such review is "doubly" deferential:
Richter, 562 U.S. at 105.
In the present case, on the bare record and argument presented to that court, the state supreme court's implicit rejection of the claim of ineffective assistance of trial counsel in Ground 3 was neither contrary to nor an unreasonable application of clearly established federal law applying the performance prong of the Strickland analysis.
First and foremost, assault with a deadly weapon was not a lesser included offense of attempted murder with a dangerous weapon at the time of Rahman's offense on November 9, 2006.
Under Nevada law, an offense is a lesser included offense of a greater offense when all of the elements of the lesser offense are included within the elements of the greater offense. E.g., Rosas v. State, 122 Nev. 1258, 1263, 147 P.3d 1101, 1105 (2006).
Petitioner relies upon the 1994 holding in Walker v. State, 110 Nev. 571, 876 P.2d 646 (1994),
At the time of Walker in 1994, the relevant statutory provisions required proof of the following under Nevada law:
110 Nev. at 574-75, 876 P.2d at 648 (emphasis added).
The Supreme Court of Nevada held in Walker that — as so defined — assault with a deadly weapon was a lesser included offense of attempted murder with the use of a deadly weapon, on the following basis:
110 Nev. at 575, 876 P.2d at 648.
In 2001, however, the Nevada Legislature amended the relevant portion of N.R.S. 200.471 to define "assault" instead as "intentionally placing another person in reasonable apprehension of immediate bodily harm." See Jackson v. State, 291 P.3d 1274, 1279 (Nev. 2012).
After the 2001 amendment, "assault" under N.R.S. 200.471 no longer was defined essentially as an attempt to commit a battery. Rather, the statute, in line instead with the traditional common law tortious definition of assault, required that the State prove that the defendant intentionally placed another person in a reasonable apprehension of immediate bodily harm.
As the Supreme Court of Nevada concluded in Jackson, assault with a deadly weapon — as defined after the 2001 amendment to N.R.S. 200.471 — did not constitute a lesser included offense of attempted murder with a deadly weapon. Quite simply, intentionally placing another person in reasonable apprehension of immediate bodily harm is not an element of attempted murder. As the court elaborated in Jackson, "murder can be attempted secretly, with the intent — indeed, the hope — that the victim will never apprehend danger; assault . . . punishes the opposite."
The state supreme court decided Jackson in 2012, prior to its 2013 decision affirming the denial of Rahman's state petition on the merits. Moreover, the change in Nevada law — and the resulting change in the application of Nevada's clearly-established lesser-includedoffense test — was operative when the statute was amended in 2001, approximately five years before Rahman's November 9, 2006, offense. The 1994 holding in Walker clearly no longer was good law in 2006 because the holding was based upon statutory language that had been repealed and replaced with an entirely different definition of assault under Nevada law.
In the present case, it therefore was not deficient performance for trial counsel to not request a lesser-included-offense instruction on an offense that in fact was not a lesser included offense under the Nevada law that was applicable to the 2006 offense.
In any event, even if assault with a deadly weapon had constituted a lesser included offense of attempted murder with a deadly weapon at the relevant time, petitioner failed to establish in his showing to the state courts that trial counsel rendered deficient performance.
The state supreme court was presented, at best, with a bare claim unsupported by any significant record development or apposite argument and supporting citation. For factual development, petitioner presented only a single response to a single question where defense counsel did not recall — five years after trial with no file review or other preparation for the evidentiary hearing — whether he requested a lesser included offense instruction. Such a failure to recall years after the fact does not tend to establish that counsel was not aware of the possibility of an alleged lesser included offense instruction at the time of the trial, that he did not consider the possibility, or that he did not make a strategic decision to not seek an alleged lesser included offense instruction for assault with a deadly weapon.
Particularly when presented with only such a bare record, controlling Supreme Court precedent requires that the court must "affirmatively entertain the range of possible `reasons [defense] counsel may have had for proceeding as [he] did.'" Pinholster, 563 U.S. at 196.
In that regard, long-established law recognizes that defense counsel may make a legitimate strategic decision to forgo an alleged lesser included offense instruction in order to force the jury into an "all-or-nothing" decision between conviction and an outright acquittal on the greater offense. See, e.g., Bashor v. Risely, 730 F.2d 1228, 1241 (9th Cir. 1984)(pre-AEDPA de novo review).
Moreover, inclusion of assault with a deadly weapon as an alleged lesser included offense would have been potentially problematic for the defense in the present case. As referenced above, assault with a deadly weapon also was a specific intent crime under Nevada law at the relevant time. A conviction for this offense would have required that the jury find that, inter alia, Rahman "[i]ntentionally plac[ed] another person in reasonable apprehension of immediate bodily harm." N.R.S. 200.471(1)(a)(2). Inclusion of this offense as a lesser included offense effectively would be suggesting to the jury that they permissibly could find that Rahman intentionally placed Amundson in a reasonable apprehension of immediate bodily harm — i.e., of then actually being hit by one or more bullets — when Rahman fired seven large caliber rounds within feet of where Amundson was located during office hours. Any suggestion that the jury could infer from the circumstantial evidence presented that Rahman fired the bullets where he did to intentionally place Amundson in a reasonable apprehension of immediately being hit by one or more of the bullets risked coming perilously close to allowing that the jury instead simply could infer from the evidence that Rahman's own mental state satisfied the requisite specific intent to kill required for attempted murder.
Asking a jury to engage in such nuanced hair-splitting over specific intent — at least favorably to the defense — was especially problematic in the present case given Rahman's equivocal, contradictory and inconsistent testimony at trial.
In this same vein, the already charged lesser related offenses of discharging a firearm out of a motor vehicle and discharging a firearm at or into a structure already provided possible verdict alternatives to attempted murder that arguably were as good or better strategically for the defense than assault with a deadly weapon. These already charged offenses included no problematic specific intent element and they fit perfectly with a defense strategy of directly and simply maintaining that Rahman did not have the specific intent to kill Amundson when he fired the shots into the building. That is, these offenses — at least as effectively if not more effectively than assault with a deadly weapon — allowed the defense to present the jury with a third option to only either conviction or acquittal of attempted murder. The defense thus actually was able to avoid the prospect that a jury presented with only the two options of conviction and acquittal on the attempted murder offense potentially would resolve any doubts as to specific intent in favor of conviction by thinking that "the defendant is plainly guilty of some offense." See Keeble v. United States, 412 U.S. 205, 212-13 (1973). The charged firearm-discharge offenses already provided an available alternative verdict option in Rahman's case to a conviction for attempted murder with the use of a deadly weapon.
Indeed, defense counsel secured an even lesser verdict alternative, a misdemeanor, as to the offense of discharging a firearm out of a motor vehicle.
Accordingly, in relation to the performance prong of Strickland, the state supreme court's implicit rejection of the claim of ineffective assistance of trial counsel in Ground 3 was neither contrary to nor an unreasonable application of clearly established federal law in light of the record and arguments presented to the state courts.
Further, on the prejudice prong of the Strickland analysis, the state supreme court's implicit rejection of the claim of ineffective assistance of trial counsel in Ground 3 also was neither contrary to nor an unreasonable application of clearly established federal law. As discussed supra, assault with a deadly weapon was not a lesser included offense of attempted murder with the use of a deadly weapon under the Nevada statutory law applicable to Rahman's offense.
Petitioner therefore is not entitled to federal habeas relief on the claim of ineffective assistance of trial counsel in Ground 3.
Effective Assistance of Appellate Counsel
When evaluating claims of ineffective assistance of appellate counsel, the performance and prejudice prongs of the Strickland standard partially overlap. E.g., Bailey v. Newland, 263 F.3d 1022, 1028-29 (9
In the present case, no defense request was made at trial for an alleged lesser included offense instruction for assault with a deadly weapon.
The state supreme court's implicit rejection of this claim on state post-conviction review in 2013 accordingly was neither contrary to nor an unreasonable application of clearly established federal law as determined by the United States Supreme Court.
Petitioner therefore is not entitled to federal habeas relief on the claim of ineffective assistance of appellate counsel in Ground 3.
Ground 3 thus does not provide a basis for relief.
Ground 4(a): Effective Assistance — Objections and Preserving Issues for Appeal
In Ground 4(a), petitioner alleges that he was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to make appropriate objections and preserve the record for appeal. Petitioner alleges specifically that trial counsel failed to object to: (1) "testimony of Detective Caldwell with regard to Rahman's statement, which according to Detective Caldwell was proof that Rahman was `minimizing' his guilt and therefore lying that he did not intend to kill anyone;" and (2) the State's alleged "prosecutorial misconduct by failing to produce the tape-recorded conversation of Rahman allegedly threatening Main until near the end of trial."
Standard of Review Applicable to Ground 4(a)
Petitioner urged for the first time in the federal reply that the Court should consider Ground 4(a) de novo rather than under AEDPA's deferential standard of review. He urges that de novo review is required because the Supreme Court of Nevada allegedly did not expressly address the claims in its decision affirming the denial of state post-conviction relief on the merits.
The state supreme court did expressly refer in its order of affirmance, however, to petitioner's claim in Ground 4(a)(2) "that trial counsel was ineffective for . . . failing to `object to and preserve issues relating to' juror questions, questions from the bench, and an audiotape of a telephone call wherein he threatened and attempted to extort one of the victims."
With regard to the remaining claim, in Ground 4(a)(1), as discussed supra as to Ground 3, the fact that the state supreme court did not expressly mention the claim in its decision expressly addressing other claims does not automatically lead to the application of de novo review in federal court. Indeed, there is a presumption to the contrary that the claim was decided on the merits and thus instead is subject to deferential review under AEDPA.
That presumption has not been overcome in this case as to Ground 4(a)(1).
In the statement of facts in the fast track statement on the post-conviction appeal, petitioner referenced trial counsel's failure to object to the detective's "minimizing" testimony in two "bullet points" in a "laundry list" of fourteen such bullet points noting sundry alleged deficiencies by counsel.
ECF No. 14-1, at 77-78.
This listing of the items that petitioner expressly claimed in his argument should have drawn an objection from trial counsel corresponds exactly to the state supreme court's listing of such items in describing petitioner's claim.
Much as was the case with Ground 3, it does not appear that "unusual circumstances" are presented that would overcome the presumption required by Richter and Williams. The Supreme Court of Nevada simply did not expressly discuss a claim as to which Rahman had made only passing reference in the factual recital of the fast track statement without any argument thereafter specific to the claim. Absent unusual circumstances not demonstrated here, such a common situation is subject to the Richter-Williams presumption.
The Court therefore will review the state supreme court's rejection of both claims in Ground 4(a) under the AEDPA standard of review.
Ground 4(a)(1) — Failure to Object to "Minimizing" Testimony
As noted, petitioner alleges that he was denied effective assistance when trial counsel failed to object to "testimony of Detective Caldwell with regard to Rahman's statement, which according to Detective Caldwell was proof that Rahman was `minimizing' his guilt and therefore lying that he did not intend to kill anyone."
The state supreme court's implicit rejection of this claim clearly was neither contrary to nor an unreasonable application of Strickland.
At the outset, it was defense counsel that elicited the testimony from Detective Caldwell that he believed "that Rahman was `minimizing' his guilt."
Detective Caldwell testified initially during the State's case-in-chief.
On cross-examination, defense counsel asked a series of questions seeking to establish that Rahman had provided information to the police during his custodial interrogation and had not been charged thereafter for providing false information.
On redirect, the prosecution sought to dispel the inference that the defense thereby had sought to create that because Rahman was not charged for providing false information he therefore necessarily must have told the whole truth to the police:
ECF No. 27-15, at 21.
The prosecutor did not ask the detective whether he believed that Rahman was minimizing. Caldwell did not otherwise volunteer that he believed that Rahman was minimizing.
On recross, defense counsel asked only one question, in anticipation of calling Detective Caldwell again during the defense case-in-chief:
ECF No. 27-15, at 22.
The initial testimony that Detective Caldwell believed specifically that Rahman was minimizing his actions thus was elicited by defense counsel, not the State. Caldwell's testimony in this regard was fully responsive to the question that counsel clearly asked.
Thereafter, when the defense recalled Detective Caldwell in its case-in-chief, defense counsel pursued a series of questions on direct clearly seeking to establish the points as to which Caldwell believed that Rahman had been minimizing. Counsel then would seek to undercut Caldwell's testimony on these points by various means. For example, counsel would establish that Caldwell's "minimizing" belief on a point was based upon his own assumptions about the case, that Caldwell believed that Rahman was "minimizing" as to something that actually in fact was true, and/or that Caldwell's belief that Rahman was "minimizing" was based upon an assumption that what a complaining witness had said on the point instead was true.
During cross-examination, Detective Caldwell testified regarding two police interviewing techniques, both of which included "minimizing" also by the police. The police thereby would seek to minimize the situation and sympathize with the suspect in an effort to get the suspect to confess to a crime. Defense counsel thereafter inquired further on redirect as to these techniques.
At the conclusion of his testimony, the trial judge asked Caldwell several questions about alleged minimizing by suspects and Rahman in particular as well as about the minimizing done by the police. On further redirect, Caldwell ultimately acknowledged that minimizing by suspects and minimizing by the police both constituted lying.
In the federal reply, the record citation that petitioner provides as to the initiating testimony to which counsel should have objected in fact is the above questioning by the trial judge.
At the state post-conviction evidentiary hearing, defense counsel testified at length as to his strategy — which he used in many trials — of drawing a police witness into a discussion of police assumptions as to minimizing and of police interview techniques in order to question the reliability of those assumptions and techniques.
Defense counsel did not render deficient performance when he did not object to a line of inquiry that he himself had initiated and pursued extensively.
His own initiation of that line of inquiry — which is not challenged in an exhausted claim before the Court — further was the product of a calculated strategic decision.
The state supreme court's implicit rejection of this claim under the performance prong of Strickland thus was neither contrary to nor an unreasonable application of clearly established federal law.
Moreover, there was not even a remote possibility, much less a reasonable probability, that the result of the trial would have been different if defense counsel had objected to a line of inquiry that he himself had initiated and pursued extensively.
Nor was there a remote possibility, much less a reasonable probability, that the result on appeal would have been different if counsel had objected to a line of inquiry that he himself had initiated and pursued extensively. Any claim that would have been "preserved" by such an objection would have been meritless, under any appellate standard of review.
The state supreme court's implicit rejection of this claim under the prejudice prong of Strickland thus similarly was neither contrary to nor an unreasonable application of clearly established federal law.
At bottom, this claim is a fundamentally factually unsupported claim that is based upon premises that are refuted by the trial record. Petitioner clearly is not entitled to relief on this claim, even under a de novo standard of review.
Ground 4(a)(1) therefore does not provide a basis for federal habeas relief.
Ground 4(a)(2) — Failure to Object to Alleged Prosecutorial Misconduct
As noted, petitioner alleges that he was denied effective assistance when trial counsel failed to object to the State's alleged "prosecutorial misconduct by failing to produce the taperecorded conversation of Rahman allegedly threatening Main until near the end of trial."
The state supreme court's rejection of this claim clearly was neither contrary to nor an unreasonable application of Strickland.
The Court summarizes factual background relevant to this claim in the discussion of Ground 2.
Petitioner did not demonstrate to the state supreme court on the post-conviction appeal that a defense objection in the trial court to the late production of the tape would have preserved a potentially viable prosecutorial misconduct claim for direct appeal. In particular, petitioner did not establish, and could not establish, in the record before that court on postconviction review that the tape contained exculpatory evidence or impeachment material.
Trial counsel's testimony, which was in the record before the state supreme court on post-conviction review, instead reflected that the tape inculpated petitioner and that the defense was fortunate that the State did not locate the tape earlier and introduce it into evidence.
Petitioner has cited no apposite United States Supreme Court precedent establishing the existence of a potentially viable prosecutorial misconduct claim under the applicable general due process standard
A state supreme court determination that petitioner demonstrated neither deficient performance nor resulting prejudice due to trial counsel's lack of an objection to the late production thus was neither contrary to nor an unreasonable application of Strickland.
Ground 4(a)(2) therefore does not provide a basis for federal habeas relief.
Ground 4(b)(7): Effective Assistance — Petitioner's Alleged Firearms Inexperience
In Ground 4(b)(7), petitioner alleges that he was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to present evidence that petitioner "had no training with a firearm and that any shooting would have been random, as opposed to intentionally aiming at a specific location in the building."
Petitioner suggests that the claim should be reviewed de novo. However, the Supreme Court of Nevada clearly listed this claim as one of the claims presented by petitioner when it affirmed the denial of state post-conviction relief on the merits.
At trial, Rahman testified, in response to questions from the jury and the trial judge, that he had learned to handle the gun used in the offense over a year-and-a-half period while living previously in a remote area in Texas, that he would shoot at a building out in the back yard during that time, and that the gun "had been sitting there" unused thereafter for five years. His trial testimony at other points in his testimony further reflected that he was very familiar with the operation of the pistol.
At the state post-conviction evidentiary hearing, defense counsel testified that it was a mistake on his part to not ask Rahman about his alleged inexperience with firearms and that he was pleased when he saw that the testimony was elicited at trial in response to the jury question.
Petitioner presented no other evidence on state post-conviction review establishing what additional testimony or evidence, if any, counsel could have or should have presented as to Rahman's alleged lack of training or inexperience with firearms.
On the record presented to that court, the state supreme court's rejection of this claim was neither contrary to nor an unreasonable application of Strickland.
Even assuming arguendo deficient performance, petitioner failed to demonstrate resulting prejudice on state post-conviction review. Petitioner failed to present any additional evidence to the state courts on post-conviction review establishing what evidence or testimony defense counsel should have presented to the jury beyond that already presented in response to the jury questions. Petitioner urges in the federal reply that Rahman could have responded more coherently rather than being allegedly unprepared and disjointed if counsel instead had prepared him to testify on the point on direct. Even if the Court assumes that such an allegation of prejudice was presented to the state courts, a state court rejection of such a tenuous and nuanced claim of prejudice would not be an unreasonable application of the general prejudice standard in Strickland. See, e.g., Richter, 562 U.S. at 105 ("The Strickland standard is a general one, so the range of reasonable applications is substantial.") A determination, on the showing made to the state courts, that there was not a reasonable probability of a different outcome at trial due to defense counsel's failure to elicit testimony regarding Rahman's level of firearms experience when such testimony came in through other questioning was not an unreasonable application of that general standard.
Ground 4(b)(7) therefore does not provide a basis for federal habeas relief.
Consideration of Possible Issuance of a Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases, the district court must issue or deny a certificate of appealability (COA) when it enters a final order adverse to the applicant.
As to the claims rejected by the district court on the merits, under 28 U.S.C. § 2253(c), a petitioner must make a "substantial showing of the denial of a constitutional right" in order to obtain a certificate of appealability. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999). To satisfy this standard, the petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong." Slack, 529 U.S. at 484.
The Court denies a certificate of appealability as to all claims, for the reasons below.
In Ground 1, petitioner alleges that the evidence was insufficient to sustain his conviction for attempted murder with a deadly weapon because there allegedly was insufficient evidence that he had the requisite specific intent to kill the victim. The Court has extensively summarized trial evidence relevant to this claim.
In Ground 2, petitioner alleges that he was denied a fair trial due to prosecutorial misconduct when the State did not produce an audiotape from the telephone call upon which his extortion charge was based until late in the trial after the complaining witness had testified, on the premise that the late production denied defense counsel an opportunity to evaluate the evidence and plan a defense strategy. The tape was not introduced into evidence by either party, and no objection or request for relief was made in the trial court by the defense with regard to the tape. No record evidence was presented to the state supreme court that the tape contained exculpatory or impeachment information. No record evidence was presented to the state supreme court as to even the actual content of the tape or the circumstances of its late production. Given the bare factual record presented to the state supreme court and the applicable broad general due process standard, reasonable jurists would not find this Court's holding that the state supreme court's rejection of this claim withstands review under AEDPA to be either debatable or wrong.
In Ground 3, petitioner alleges that: (a) he was denied effective assistance of trial counsel when counsel failed to seek an allegedly lesser included offense instruction as to assault with a deadly weapon on the charge of attempted murder with the use of a deadly weapon; and (b) he was denied effective assistance of appellate counsel when counsel failed to raise the failure to give the instruction on direct appeal. The claims are subject to deferential review under AEDPA even though the state supreme court did not expressly address these particular claims in its final post-conviction appeal decision that expressly rejected other claims on the merits.
In Ground 4(a), petitioner alleges that he was denied effective assistance of trial counsel when counsel failed to make objections and preserve issues for appeal. In Ground 4(a)(1), he relies upon counsel's lack of objection to testimony by a detective that petitioner was "minimizing" his guilt in his statements to police. In Ground 4(a)(2), he relies upon counsel's lack of objection to prosecutorial misconduct as alleged in Ground 2 when the State did not produce a tape of a conversation where petitioner allegedly extorted one of the victims until near the end of trial.
The claims in Ground 4(a) are subject to deferential review under AEDPA rather than de novo review.
On Ground 4(a)(1), the full trial record instead reflects that it was defense counsel that initially elicited testimony from the detective that petitioner was "minimizing" and thereafter developed the testimony further. Counsel did so for strategic reasons to question both police assumptions and interrogation methods, and there in any event is no exhausted claim presented herein challenging counsel's decision to elicit the testimony in the first instance. On the claim that is presented, the state supreme court's implicit rejection of a claim that counsel was ineffective for failing to object to testimony that he himself first elicited and developed extensively was neither contrary to nor an unreasonable application of Strickland. Reasonable jurists therefore would not find this Court's holding that the state supreme court's rejection of this claim withstands review under AEDPA to be debatable or wrong. Moreover, the claim is in any event without merit even on a de novo review because it is based upon a mischaracterization of the trial record, given that it in fact was the defense that elicited the testimony in the first instance.
On Ground 4(a)(2), petitioner did not, and could not, establish in the record before the state supreme court on the state post-conviction appeal that the tape in question contained exculpatory evidence or impeachment material. The record before that court reflected that the tape was inculpatory and that it was not introduced at trial by the State due to the late production. Petitioner cites no apposite United States Supreme Court precedent establishing a potentially viable prosecutorial misconduct direct appeal claim based on late production of inculpatory evidence that is not introduced at trial. A state supreme court determination that petitioner demonstrated neither deficient performance nor resulting prejudice due to trial counsel's lack of objection thus was neither contrary to nor an unreasonable application of Strickland. Reasonable jurists therefore would not find this Court's holding that the state supreme court's rejection of the claim withstands review under AEDPA to be debatable or wrong.
To the extent that petitioner otherwise seeks relief under Ground 4(a) premised upon a general philosophical disagreement with defense counsel's approach to trial objections over and above these two specific claims, Ground 4(a) does not present a viable claim for federal habeas relief.
Finally, in Ground 4(b)(7), petitioner alleges that he was denied effective assistance when trial counsel failed to present evidence that petitioner had no firearms training. The claim was rejected on the merits, and it therefore is subject to deferential AEDPA review. Testimony was elicited from petitioner at trial as to the level of his firearms experience in response to questions from the jury and court. Trial counsel testified at the state court evidentiary hearing that he did not elicit such testimony instead himself through mistake, but petitioner did not otherwise make any showing on state post-conviction review as to what additional evidence or testimony should have been presented. On such a record, a determination by the state supreme court that the any arguendo deficient performance did not result in prejudice would not be an unreasonable application of the general prejudice standard in Strickland. Reasonable jurists therefore would not find this Court's holding that the state supreme court's rejection of this claim withstands review under AEDPA to be debatable or wrong.
A certificate of appealability accordingly will be denied as to all claims.
IT THEREFORE IS ORDERED that the petition for a writ of habeas corpus is DENIED on the merits and that this action shall be DISMISSED with prejudice.
IT FURTHER IS ORDERED that a certificate of appealability is DENIED, for the reasons stated at pages 46-50 of the Court's order.
The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice.
Petitioner seeks to draw competing inferences from the alleged initial police assessment of the significance of Rahman's first threats on November 7, 2006. Petitioner alleges that the investigating detective's testimony reflects that "Rahman's statements [on November 7, 2006,] were not taken seriously enough by the police to spur any further investigation" and that there thus was no evidence of specific intent prior to the shooting. ECF No. 26, at 15. The detective testified, however, that he had not been aware of the November 7, 2006, specific threats to kill at the time of the charging recommendation. See ECF No. 27-15, at 18 (original transcript page number 64, lines 8-22). He did not assess that of which he was not aware.
Petitioner further points to the State's dismissal of a charge of attempting to murder Main. The dismissal of this charge has no relevance to any exhausted material issue herein. However, the most likely reason that the charge was later dropped was that the prosecution ultimately concluded that, while Main was in the building at the time of the shooting, his office was over 60 feet away at the other end of the building from where Rahman fired his shots. Rahman fired into Amundson's office, not Main's.
In all events, such debating points as to competing inferences that perhaps could be drawn from the trial evidence are at best fodder for closing argument, not for a successful challenge to the sufficiency of the evidence under Jackson. "[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326. After AEDPA, the Court must apply the Jackson standard "with an additional layer of deference." Juan H. v. Allen, 408 F.3d at 1274. What the police may or may not have known or thought at a particular time, and their alleged bases for charging recommendations, clearly did not circumscribe the inferences that the jury permissibly could draw from the actual evidence presented at trial.
At bottom, an assailant with a .45 caliber pistol cannot insulate himself from potential culpability for attempted murder as a matter of law simply by saying that he did not mean to kill the person in the office into which he fired multiple shots. That fact that petitioner was convicted after presenting such a narrative to the jury does not give rise to a viable insufficient evidence claim under Jackson. At the very least, the state supreme court's rejection of such a claim was neither contrary to nor an unreasonable application of clearly established federal law as determined by the United States Supreme Court.
There is a transcript apparently of the audible portions of the tape in the federal record, which similarly does not appear to have been in the record on the state court direct appeal. See ECF No. 29-21. The transcript obviously picks up during an ongoing conversation, which is consistent with Main's testimony tending to establish that the tape did not cover the entire conversation. The tape transcript — when viewed in the context of the Court's review of the full trial record — contains no exculpatory evidence under Brady and no material impeachment evidence under Giglio. Nor is there anything in the transcript that would tend to suggest that late production of the tape would "so infect the trial with unfairness as to make the resulting conviction a denial of due process." If anything, the defense was fortunate that a tape tending to corroborate Main's testimony that Rahman attempted to extort $100,000 from him did not make it into evidence. At bottom, even after viewing evidence not presented to the state supreme court at the time of its decision on the merits of this claim, Ground 2 remains a claim bereft of any factual support and/or apposite supporting United States Supreme Court authority.
Petitioner further alleges in partial support of this ground that "[t]he basis for the charge of attempted murder of Amundson was, to a significant extent, the telephone conversation between Rahman and Main made on November 9th following Rahman's shooting into the building." ECF No. 26, at 16. Petitioner bases this allegation on the testimony of an investigating detective. The detective testified that attempted murder charges as to both Amundson and Main were brought initially because Rahman threatened to shoot Main in the post-shooting call and he had fired shots into an office building where both worked. The detective further testified that he was not aware at the time that the initial charges were made that Rahman had threatened to kill Amundson on November 7, 2006. ECF No. 27-15, at 18. What a detective thought about why certain charges were brought initially has nothing to do with the inferences that the jury instead could draw after considering the actual trial evidence. Regardless of whether the police — as a whole — were aware of and/or initially attached significance to Rahman's threats on November 7, 2006, to kill Amundson and his family, the jury quite clearly could attach significance to those threats given that Rahman fired multiple shots within feet of Amundson's likely location on November 9, 2006, after making those threats and before Rahman called Main. Petitioner's premise that the November 9, 2006, extortion call was the linchpin evidence — at trial — on the charge of attempting to murder Amundson is unfounded. In truth, what initial charging recommendation was made by the police and why has no real relevance to any material exhausted issue in this case after the matter was tried to a jury on a full record. Inferences from the detective's testimony and the State's charging decisions in the case simply lead nowhere material to the disposition of the issues presented on federal habeas review, including Ground 2.
The Court is not persuaded that it should "look through" the state supreme court's decision instead to the state district court's decision as the "last reasoned decision" on the claims. The state supreme court's decision was not a summary denial such as would be "looked through" under Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991)("The essence of unexplained orders is that they say nothing.") The state supreme court's order instead explicitly affirmed the denial of the state petition on the merits and briefly discussed a number of specific claims. That it did not expressly address also the claims in Ground 3 does not render the order the equivalent of a one-line summary denial "say[ing] nothing." In any event, the state district court's order was no more explicit than the state supreme court's order with regard to the specific claims in Ground 3.
Petitioner urges that after failing to object to the minimizing testimony purportedly elicited by the State (but actually elicited by the defense), defense counsel then (1) exacerbated the problem by eliciting damaging testimony about minimizing when Caldwell was recalled; (2) sought to have him declared as a hostile witness apparently as an attempt somehow to rectify that situation, and (3) thereafter "was stuck with Detective Caldwell's speculative and highly objectionable testimony." ECF No. 37, at 21.
That is not what happened at trial. The defense, again, elicited the testimony in question initially in the State's case in chief. Thereafter, defense counsel very obviously intentionally followed through with this line of inquiry when he recalled Caldwell. He sought to have Caldwell declared a hostile witness only after the State objected to his leading questions during the inquiry. After the objection was argued, defense counsel returned to essentially the very same question that he had asked before the objection. Compare ECF No. 28, at 66 (original transcript page 255, at lines 10-12) with id., at 67 (original transcript page 259, at lines 1-5). He thereafter continued on with this same line of inquiry. He would not have returned to the same question and the same line of inquiry if the request to have Caldwell declared a hostile witness had been some sort of "damage control" misdirection stratagem undertaken in desperation after the response to an ill-conceived question went awry.
The only fair reading of the record is that defense counsel intentionally pursued exactly the line of inquiry that the trial record shows that he pursued as to Caldwell with regard to alleged "minimizing," in both the State and defense case-in-chief. Petitioner's suggestion to the contrary mischaracterizes the record.
Any other claims that might have been brought in this regard after first being properly exhausted are not before the Court herein. On the claim that is presented on the pleadings, however, the factual narrative presented by petitioner as to this testimony is not supported by the record. Nor does the actual trial record support a claim of ineffective assistance based upon defense counsel allegedly not having objected to testimony elicited by the State when the testimony instead in fact was intentionally elicited by the defense, both initially and thereafter.
Defense counsel did in fact respond at one point as follows:
ECF No. 29-13, at 47.
However, counsel also responded more directly to the same basic question earlier as follows:
ECF No. 29-13, at 45-46 (emphasis added).
Petitioner thus overstates — via omission — defense counsel's actual testimony. Defense counsel undeniably testified during the overall testimony relied upon by petitioner that he viewed his "job" at trial as trying to win at trial. However, he did not deny that his job also was to preserve the record in the event of a loss at trial and appeal. He in fact acceded in his testimony that that also was one of his primary jobs at trial.
Moreover, defense counsel in fact did object on a multitude of occasions during trial. See, e.g., ECF No. 27-13, at 14-16 (multiple), 30, 35, 42-46 (extensive objection with voir dire of witness), 58-59, 63-64, 68 & 70; ECF No. 27-15, at 5, 12, 21, 25-32 (extensive objection with voir dire of witness) & 36; ECF No. 27-16, at 8, 18-24 (multiple objections; extensive argument), & 34-35; ECF No. 28, at 44-45, 50, 53, 54, 57, 58 & 68.
In any event, petitioner's disagreement with defense counsel's approach, in general, to objections does not present a viable claim of ineffective assistance of counsel under Strickland. A reviewing court is not going to grant state or federal post-conviction relief based on philosophical differences as to how to defend criminal cases generally. Rather, a petitioner must identify specific failures to object that allegedly were deficient and resulted in prejudice. The two specific instances where counsel did not object relied upon in Ground 4(a) do not provide a basis for federal habeas relief for the reasons discussed in the text.
In this same vein, petitioner points to a portion of the trial transcript where the trial judge admonished the experienced defense counsel — in the presence of the jury during the first prosecution witness — that he should object more, because a question was leading. See ECF No. 27-13, at 16 (the judge stated that "the rules are the rules . . . [w]hether it's a minor matter or an important matter . . . you're not supposed to lead on direct"). How much to object and to what in a jury trial present a paradigm case of a strategic decision by trial counsel, subject to a multitude of considerations. If petitioner or even the state court trial judge disagreed philosophically with trial counsel's approach to defending a criminal case in this regard, that is not a matter cognizable on federal habeas review. While petitioner relies upon the trial judge's admonishment on this point, he notes elsewhere, regarding questions to witnesses from the bench, that the judge was suspended a short time later and ultimately removed from office. See ECF No. 26, at 27 n.8. In all events, the judge's admonition that defense counsel should object more does not lead to a contrary conclusion on Ground 4(a).