Brass v. Williams

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6                   UNITED STATES DISTRICT COURT                            
7                        DISTRICT OF NEVADA                                 
8  GEORGE M. BRASS,                   Case No.: 2:13-cv-02020-GMN-VCF       

9       Petitioner                              Order                       

10  v.                                                                       

11  BRIAN WILLIAMS, SR., et al.,                                             

12       Respondents.                                                        

13                                                                           

14      Petitioner George M. Brass filed a petition for writ of habeas corpus under 28 U.S.C. § 
15  2254. This matter is before the Court for adjudication of the merits of the remaining grounds in 
16  the petition. For the reasons discussed below, this court denies the petition, denies a certificate of 
17  appealability, and directs the Clerk of the Court to enter judgment accordingly.   
18                             Background                                    
19      Brass was charged with crimes related to events that occurred in Clark County, Nevada 
20  on September 15, 2006, and September 22, 2006. ECF No. 32-1. On September 15, 2006, 
21  Graciela Saavedra de Cerda was sitting in a van with her son at a business complex in Las 
22  Vegas, Nevada. ECF No. 33-2 at 43. Saavedra de Cerda testified that there were several Mexican 
23  men standing outside of the business complex talking. Id. at 51. Saavedra de Cerda noticed three 
1  young African American men “walking from a path that was coming from some apartments 
2  nearby” towards the group of Mexican men, and a few minutes later, she heard six gunshots. Id. 
3  at 44, 50.                                                               
4      One of the Mexican men, Martin Candelos, testified that he was standing outside of a 
5  counseling meeting with his friend, Antonio Perez-Martinez, and a new acquittance, Mario 

6  Mendez. Id. at 61-62. They were approached by three African American men who pointed two 
7  guns at them and demanded money. Id. at 67-68. Candelos managed to get away after struggling 
8  with one of the African American men and was shot at as he was running away. Id. at 71-73. 
9  Perez-Martinez was shot and killed in the confrontation, and Mendez managed to hide behind a 
10  palm tree. Id. at 90, 95.                                                
11      One week later, on September 22, 2006, Victor Manuel Abris, Leodelgado Leon Carlos, 
12  Lovardo Ledesma Nunez, Cesar Carrizales, and Saul Nunez-Suastegui were outside of the 
13  Village Palm Apartments in Las Vegas, Nevada. ECF No. 33-2 at 213-215. The five men were 
14  standing around talking when they heard “the cocking of a weapon or something.” Id. at 217. 

15  Thereafter, four African American men, each with a handgun and wearing a face-covering scarf, 
16  approached and demanded money. Id. at 219-220. Even though some of the five men attempted 
17  to give the African American men their wallets or jewelry, all four African American men started 
18  firing their weapons. Id. at 222, 233. Carrizales was shot in the head and survived; however, 
19  Nunez-Suastegui suffered a fatal gunshot wound. Id. at 234-35; ECF No. 33-3 at 12-13. 
20      Regarding the September 15, 2006 crime scene, Brass’s fingerprints were found on a gate 
21  near the scene, and the casings and bullets recovered from the scene and the bullet recovered 
22  from the autopsy of Perez-Martinez were linked to a .9-millimeter handgun belonging to one of 
23  Brass’s co-defendants, Eugene Nunnery. ECF No. 33-2 at 141-42, 151-54, 189; ECF No. 33-3 at 
1  109-112. Regarding the September 22, 2006 events, it was determined that Nunez-Suastegui was 
2  shot by the same .9-millimeter handgun belonging to Nunnery. ECF No. 33-3 at 113-116. There 
3  were also casings found at the scene linked to a .45-caliber gun and bullets linked to a medium 
4  caliber gun. Id. at 113-114, 118. Brass’s cell phone was recovered near the scene. Id. at 96, 149-
5  52, 167. During a police interview, Brass admitted that he was with Nunnery on September 22, 

6  2006, but Brass alleged that Nunnery got into an altercation with one of the victims and starting 
7  shooting after Brass had already started to walk away. ECF No. 33-3 at 182-83, 188. Later, during 
8  a search of Brass’s parents’ residence, a revolver was located. ECF No. 33-4 at 27-28. 
9      Following a jury trial, on October 20, 2009, Brass was found guilty of the charges related 
10  to the September 22, 2006 incident: one count of murder with the use of a deadly weapon, two 
11  counts of attempted murder with the use of a deadly weapon, one count of conspiracy to commit 
12  robbery, one count of robbery with the use of a deadly weapon, and two counts of attempted 
13  robbery with the use of a deadly weapon. ECF No. 34-1. Brass was found not guilty of the 
14  September 15, 2006 events. Id. The state district court sentenced Brass to two consecutive terms 

15  of life with the possibility of parole. ECF No. 34-6. Brass appealed, and the Nevada Supreme 
16  Court affirmed. ECF No. 36-1. Remittitur issued on January 4, 2011. ECF No. 36-2. 
17      Brass filed a pro se state habeas petition and a counseled, supplemental memorandum in 
18  support of his petition on April 5, 2011 and January 9, 2012, respectively. ECF Nos. 36-4, 38-3. 
19  An evidentiary hearing was held on June 18, 2012, and on July 30, 2012, the state district court 
20  denied Brass’s state habeas petition. ECF Nos. 39, 39-1. Brass appealed, and the Nevada 
21  Supreme Court affirmed. ECF No. 40-2. Remittitur issued on October 18, 2013. ECF No. 40-3.  
22      Brass filed a pro se federal habeas petition and a counseled, first amended petition on 
23  November 22, 2013 and December 17, 2014, respectively. ECF Nos. 7, 24. On January 9, 2015, 
1  Brass moved for a stay and abeyance of his federal habeas action in order to exhaust his 
2  remedies in state district court. ECF No. 43. The Respondents moved to dismiss Brass’s first 
3  amended petition and opposed his motion for a stay and abeyance. ECF Nos. 47, 48.  
4      On September 18, 2015, Brass filed a second state habeas petition. ECF No. 73-1. The 
5  state district court denied the petition, and the Nevada Court of Appeals affirmed on October 18, 

6  2016. ECF Nos. 73-3, 73-5.                                               
7      On September 7, 2017, this court denied Brass’s motion for stay and abeyance as moot 
8  and denied the Respondents’ motion to dismiss without prejudice. ECF No. 65. The Respondents 
9  renewed their motion to dismiss Brass’s first amended federal habeas petition on February 2, 
10  2018. ECF No. 72. This court granted the renewed motion to dismiss in part. ECF No. 84. 
11  Specifically, this court dismissed Grounds Four and Nine. Id. at 10. The Respondents answered 
12  the remaining claims on August 23, 2018. ECF No. 89. Brass replied on November 5, 2018. ECF 
13  No. 98.                                                                  
14      In his remaining ground for relief, Brass alleges the following violations of his federal 

15  constitutional rights:                                                   
16           1.   The state district court impermissibly admitted the revolver. 
            2.   Joinder  of  the  two  September  2006  instances  for  trial  was 
17                fundamentally unfair.                                      
            3.   The state district court improperly allowed the prior testimony of 
18                two witnesses.                                             
            5.   The state district court impermissibly denied his theory of defense 
19                instruction and allowed other instructions that contradicted the mere 
                 presence instruction given.                                
20           6a.   His trial counsel failed to investigate or hire experts related to the 
                 revolver, the bullet fragment, or the gun powder residue.  
21           6b.  His trial counsel refused to allow him to testify.         
            6c.  His trial counsel failed to object to prosecutorial misconduct. 
22           6d.  His trial counsel failed to object to the unlawfully composed jury. 
            6e.  His trial counsel failed to object to improper jury instructions. 
23           7a.  His appellate counsel failed to federalize claims.         
1           7b.  His  appellate  counsel  failed  to  raise  ineffective-assistance-of-
                 counsel claims.                                            
2           7c.  His appellate counsel failed to argue error in granting the motion to 
                 withdraw his guilty plea.                                  
3           8.   His trial counsel failed to investigate and erroneously advised him 
                 in relation to the plea agreement.                         
4           10.  There were cumulative errors.                              

5  ECF No. 24.                                                              
6                              Discussion                                   
7  A.  Standard of review                                                   
8      28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas 
9  corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): 
10      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 to any claim that 
11      was adjudicated on the merits in State court proceedings unless the adjudication of 
       the claim –                                                          
12                                                                           
    (1) resulted in a decision that was contrary to, or involved an unreasonable application 
13      of, clearly established Federal law, as determined by the Supreme Court of the 
       United States; or                                                    
14                                                                           
    (2) resulted in a decision that was based on an unreasonable determination of the facts 
15      in light of the evidence presented in the State court proceeding.    

16  A state court decision is contrary to clearly established Supreme Court precedent, within the 
17  meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing 
18  law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that 
19  are materially indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 
20  538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing 
21  Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application 
22  of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if 
23  the state court identifies the correct governing legal principle from [the Supreme] Court’s 
1  decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75 
2  (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause requires the state 
3  court decision to be more than incorrect or erroneous.  The state court’s application of clearly 
4  established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) 
5  (internal citation omitted).                                             

6      The Supreme Court has instructed that “[a] state court’s determination that a claim lacks 
7  merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the 
8  correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing 
9  Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a 
10  strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. 
11  at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 
12  (describing the standard as a “difficult to meet” and “highly deferential standard for evaluating 
13  state-court rulings, which demands that state-court decisions be given the benefit of the doubt” 
14  (internal quotation marks and citations omitted)).                       

15  B.  Ground 1                                                             
16      In Ground 1, Brass alleges that his federal constitutional rights were violated when the 
17  state district court impermissibly admitted the revolver. ECF No. 24 at 23. Because the revolver 
18  and ammunition were not the same type found at the crime scenes and because there was no 
19  evidence that he actually owned or possessed the revolver, Brass alleges that this evidence was 
20  not relevant, was unfairly prejudicial, and confused and misled the jury. Id. at 23-24. In Brass’s 
21  appeal of his judgment of conviction, the Nevada Supreme Court held:     
22      Brass argues that the district court erred in admitting evidence related to a firearm 
       recovered  from  his  parents’  home.  We  discern  no  abuse  of  discretion.  See 
23      Archanian v. State, 122 Nev. 1019, 1029, 145 P.3d 1008, 1016 (2006) (“District 
       courts are vested with considerable discretion in determining the relevance and 
1      admissibility of evidence.”). As the firearm was recovered days after the shooting 
       from a home where Brass had been staying and was of a similar caliber to bullet 
2      fragments recovered at the scene, Brass did not demonstrate that the district court’s 
       decision was “manifestly wrong.” Id. Moreover, as Brass was acquitted of the 
3      charges resulting from the incident where only two of the three assailants were 
       armed, he did not demonstrate that the jury was misled. See NRS 48.035(1) 
4      (“Although  relevant,  evidence  is  not  admissible  if  its  probative  value  is 
       substantially outweighed by the danger of unfair prejudice, of confusion of the 
5      issues or of misleading the jury.”).                                 

6  ECF No. 36-1 at 1-2. The Nevada Supreme Court’s rejection of this claim was neither contrary 
7  to nor an unreasonable application of clearly established law as determined by the United States 
8  Supreme Court.                                                           
9      Prior to trial, Brass moved to suppress “the weapons seized from [his] parent’s house” 
10  because “they [were] not tied in any way to the two robberies for which [he was] charged.” ECF 
11  No. 32-5 at 5. A hearing was held on Brass’s motion. See ECF No. 32-6. The state district court 
12  declined to determine whether it would admit the revolver found at Brass’s parents’ house; 
13  rather, the state district court indicated that it was “going to have to hear the testimony” first. Id. 
14  at 67. The state district court explained that “[i]f [the evidence led it] to believe that [Brass was] 
15  probably there [at the crime scene] and he probably had a gun, then . . . the fact that a gun was 
16  recovered in a time not too distant in terms of proximity” was relevant and the revolver would be 
17  admitted; however, “if it appear[ed] that he’s there and nobody has any reason to place a gun in 
18  his hand, it’s probably not coming in.” Id. at 67-68.                    
19      Later, during the second day of trial, Victor Manuel Abris and Lovardo Ledesma Nunez, 
20  victims of the September 22, 2006 events, both testified that all four African American men had 
21  handguns. ECF No. 33-2 at 219-220, 232. Similarly, a witness to the September 22, 2006 events, 
22  Oscar Carcamo, testified that each of the four African American men had a gun. Id. at 244, 249. 
23  At the close of testimony on the second day of trial, the state district court indicated that “we’ve 
1  got three different witnesses who all say four [of the individuals] were armed and four were 
2  shooting,” which puts Brass “in at last constructive possession of a gun.” Id. at 259. Therefore, 
3  the state district court explained that it thought “the relevance [of the revolver found in Brass’s 
4  parents’ house] is great and the probative [value] outweighs the prejudice.” Id.  
5      The following day, Jessie Sams, a crime scene analyst, testified that she “was called in on 

6  a search warrant to recover evidence” from Brass’s parents’ residence. ECF No. 33-4 at 21-22. 
7  Sams testified that she located a black backpack in the residence that contained some 
8  ammunition and a “Taurus .38 special ultra light revolver.” Id. at 27-28. Sams explained that the 
9  latent fingerprints on the revolver “were not of sufficient quality” for comparison purposes, and 
10  that there were no “identifiers to determine who owned th[e] backpack.” Id. at 28, 32-33. It was 
11  later determined that “[t]he evidence bullets and cartridge cases [recovered from the scene] had 
12  not been fired by the Taurus revolver.” ECF No. 63-1.                    
13      “A habeas petitioner bears a heavy burden in showing a due process violation based on 
14  an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), as amended on 

15  reh’g, 421 F.3d 1154 (9th Cir. 2005). “[C]laims deal[ing] with admission of evidence” are 
16  “issue[s] of state law,” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009), and “federal 
17  habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764 (1990). 
18  Thus, the issue before this court is “whether the state proceedings satisfied due process.” Jammal 
19  v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). In order for the admission of evidence to 
20  provide a basis for habeas relief, the evidence must have “rendered the trial fundamentally unfair 
21  in violation of due process.” Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (citing Estelle 
22  v. McGuire, 502 U.S. 62, 67 (1991)). Not only must there be “no permissible inference the jury 
23                                                                           
1  may draw from the evidence,” but also the evidence must “be of such quality as necessarily 
2  prevents a fair trial.” Jammal, 926 F.2d at 920 (emphasis in original) (citation omitted). 
3      Although the revolver found at Brass’s parents’ residence was not linked to the physical 
4  evidence recovered from the crime scene and there was nothing connecting Brass to the revolver 
5  other than the location where it was found, it cannot be concluded that the admission of the 

6  revolver rendered Brass’s trial fundamentally unfair in violation of his due process rights. 
7  Estelle, 502 U.S. at 67; Sublett, 63 F.3d at 930; Jammal, 926 F.2d at 920. As the state district 
8  court noted, two victims and one witness testified that all four African American men had 
9  handguns during the events on September 22, 2006. ECF No. 33-2 at 219-220, 232, 244, 249. 
10  Therefore, there was a permissible inference to be drawn from the admission of the revolver: that 
11  Brass was potentially one of the four armed individuals because he had access to a handgun. 
12  Jammal, 926 F.2d at 920. Further, “[u]nder AEDPA, even clearly erroneous admissions of 
13  evidence that render a trial fundamentally unfair may not permit the grant of federal habeas 
14  corpus relief if not forbidden by ‘clearly established Federal law,’ as laid out by the Supreme 

15  Court.” Yarborough, 568 F.3d at 1101 (citing 28 U.S.C. § 2254(d)); see also Dowling v. United 
16  States, 493 U.S. 342, 352 (1990) (explaining that the Supreme Court has “defined the category of 
17  infractions that violate ‘fundamental fairness’ very narrowly”). And importantly, the Supreme 
18  Court “has not yet made a ruling that admission of irrelevant or overtly prejudicial evidence 
19  constitutes a due process violation sufficient to warrant issuance of the writ.” Id. Accordingly, 
20  because the Nevada Supreme Court reasonably denied Brass relief on this claim, Brass is denied 
21  federal habeas relief for Ground 1.                                      
22  ///                                                                      
23  ///                                                                      
1  C.  Ground 2                                                             
2      In Ground 2, Brass alleges that his federal constitutional rights were violated when the 
3  state district court joined the two September 2006 incidents at trial. ECF No. 24 at 24. In 
4  Brass’s appeal of his judgment of conviction, the Nevada Supreme Court held: 
5      Brass argues that the district court improperly joined two separate instances for 
       trial. However, because the two separate transactions, which were temporally and 
6      geographically proximate as well as methodically similar, “constitute[ed] parts of 
       a common scheme or plan,” see NRS 173.115(2), we conclude that the district court 
7      did not abuse its discretion. See Graves v. State, 112 Nev. 118, 128, 912 P.2d 234, 
       240 (1996) (concluding  that defendant’s systematic walk from one casino  to 
8      another where he attempted to steal while in each constituted a common scheme); 
       Tillema v. State, 112 Nev. 266, 268, 914 P.2d 605, 606-07 (1996) (holding that 
9      vehicle burglaries 17 days apart were part of a common scheme or plan). Moreover, 
       as Brass was acquitted of the charges resulting from the September 15, 2006, 
10      incident, he did not demonstrate “a substantial and injurious effect on the jury’s 
       verdict,” Weber v. State, 121 Nev. 554, 570-71, 119 P.3d 107, 119 (2005), as the 
11      jury carefully considered the evidence relating to each charge did not infer from the 
       joinder of charges that Brass had a criminal disposition.            
12                                                                           
13  ECF No. 36-1 at 2. The Nevada Supreme Court’s rejection of this claim was neither contrary to 
14  nor an unreasonable application of clearly established law as determined by the United States 
15  Supreme Court.                                                           
16      The State moved to join Brass’s two cases. See ECF No. 32-3 at 2. Brass opposed the 
17  motion. ECF No. 31-6. Following oral argument, the state district court granted the motion. 
18  ECF No. 32-3 at 8. The state district court explained that it            
19      finds that the State has shown that the two incidents are connected together and that 
       there is cross-admissibility regarding the two incidents. This cross-admissibility 
20      pursuant to NRS 48.045 could be used to show motive, intent, preparation, plan, 
       knowledge, identity, absence or lack of mistake. The Court finds that the cases are 
21      so highly similar, in that they occurred one week apart, both occurred on Friday 
       evenings between 10:00 and approximately 10:30, they occurred in relatively close 
22      areas of town, their factually and similar - - factually similar in that they involve 
       black males who are approaching groups of Hispanic males. In both cases these 
23      Hispanic males were robbed at gunpoint by the black males; in both cases there 
       were shots fired when the Hispanics did not comply or chose to run from the scene. 
1      Based up on these similarities, the Court finds that the probative value outweighs 
       the prejudicial, the possibility of prejudice to the defendant.      
2                                                                           
3  Id. at 8-9. The jury was later instructed that “[e]ach charge and the evidence pertaining to it 
4  should be considered separately. The fact that you may find a defendant guilty or not guilty as 
5  to one of the offenses charged should not control your verdict as to any other offense charged.” 
6  ECF No. 33-6 at 12.                                                      
7      A court “may grant habeas relief on a joinder challenge only if the joinder resulted in an 
8  unfair trial. There is no prejudicial constitutional violation unless simultaneous trial of more 
9  than one offense . . . actually render[ed] petitioner’s state trial fundamentally unfair and hence, 
10  violative of due process.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (internal 
11  quotation marks omitted) (quoting Sandoval v. Calderon, 241 F.3d 765, 771-72 (9th Cir. 
12  2001)); see also Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998) (“[M]isjoinder must 
13  have ‘result[ed] in prejudice so great as to deny [Petitioner] his Fifth Amendment right to a fair 
14  trial’ in order for us to find that [Petitioner] suffered a constitutional violation.”). As to 

15  prejudice, the court must ask “‘if the impermissible joinder had a substantial and injurious 
16  effect or influence in determining the jury’s verdict.’” Davis, 384 F.3d at 638 (quoting 
17  Sandoval, 241 F.3d at 772). The Ninth Circuit explained that it “focuses particularly on cross-
18  admissibility of evidence and the danger of ‘spillover’ from one charge to another, especially 
19  where one charge or set of charges is weaker than another.” Id.; see also Sandoval, 241 F.3d at 
20  772 (“[R]ecogniz[ing] that the risk of undue prejudice is particularly great whenever joinder of 
21  counts allows evidence of other crimes to be introduced in a trial where the evidence would 
22  otherwise be inadmissible.”) Reversal of a conviction is not warranted if “the evidence was so 
23  strong that any due process violation in the joinder had no ‘substantial and injurious effect or 
1  influence in determining the jury’s verdict’ with regard to that offense.” Bean, 163 F.3d at 1086 
2  (citing Brecht v. Abramson, 507 U.S. 619, 637 (1993)).                   
3      Based upon this court’s review of the record, it cannot be determined that the joinder of 
4  the two September 2006 incidents rendered Brass’s trial fundamentally unfair. Davis, 384 F.3d 
5  at 638. Due to the location of Brass’s cellular telephone and his police interview statements, it 

6  appears that evidence related to the September 22, 2006 events was somewhat stronger than the 
7  evidence related to the September 15, 2006 events, which only amounted to a fingerprint found 
8  near the scene and Brass’s association with the shooter. However, it also appears that pursuant 
9  to Nevada law, the evidence from the two incidents would be cross-admissible because, as the 
10  state district court explained, the incidents were similar and connected. ECF No. 32-3 at 8-9; 
11  see also Nev. Rev. Stat. § 48.045(2) (“Evidence of other crimes, wrongs or acts . . . may . . . be 
12  admissible . . . as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or 
13  absence of mistake or accident.”). Moreover, as was the case here, see ECF No. 33-6 at 12, 
14  prejudice can be “limited through an instruction directing the jury to consider each count 

15  separately.” Davis, 384 F.3d at 639 (citing United States v. Lane, 474 U.S. 438, 450 n.13 
16  (1986)). Finally, because Brass was only found guilty of the charges related to the September 
17  22, 2006 events, ECF No. 34-1, it cannot be concluded that the joinder “had a substantial and 
18  injurious effect or influence in determining the jury’s verdict.” Davis, 384 F.3d at 638. Indeed, 
19  the Ninth Circuit has explained that acquittal on one joined charge establishes that the jury 
20  successfully compartmentalized the evidence. See Featherstone v. Estelle, 948 F.2d 1497, 
21  1503-04 (9th Cir. 1991) (“[I]t is apparent from the jury’s discerning verdict that it followed the 
22  court’s instructions to regard each count as separate and distinct.”). Accordingly, because the 
23                                                                           
1  Nevada Supreme Court reasonably denied Brass relief on this claim, Brass is denied federal 
2  habeas relief for Ground 2.                                              
3  D.  Ground 3                                                             
4      In Ground 3, Brass argues that his federal constitutional rights to confront and cross-
5  examine witnesses and to a fair trial were violated when the state district court improperly 

6  allowed the prior testimony of two unavailable witnesses, Leodelgado Leon Carlos and Cezar 
7  Carrizales. ECF No. 24 at 26. Brass contends that the State did not specifically identify the 
8  efforts it made to secure the attendance of these witnesses for trial, his previous cross-
9  examination of these witnesses did not touch upon his later-developed theory of defense, and 
10  the jury never heard these witnesses’ live testimony. Id. at 26-27. In Brass’s appeal of his 
11  judgment of conviction, the Nevada Supreme Court held:                   
12      Brass argues that the district court erred in permitting the introduction of the 
       preliminary  hearing  testimony  of  two  witnesses  as  violative  of  Crawford  v. 
13      Washington,  541  U.S.  36  (2004),  and  unfairly  prejudicial.  We  disagree.  The 
       admission of the preliminary hearing testimony did not violate the Confrontation 
14      Clause because Brass was represented by counsel at the preliminary hearing, 
       counsel cross-examined the witnesses at the hearing, and the witnesses were not in 
15      the United States at the time of trial. See Chavez v. State, ___ Nev. ___, ___, 213 
       P.3d  476,  485-86  (2009)  (providing  that  admission  of  deceased  victim’s 
16      preliminary hearing testimony did not violate defendant’s Confrontation rights); 
       Grant v. State, 117 Nev. 427, 432, 24 P.3d 761, 764 (2001) (“[T]he admission of 
17      prior testimony comports with the requirements of the Sixth Amendment of the 
       United States Constitution provided that defense counsel had the opportunity to, 
18      and in fact did, thoroughly cross-examine the witness, and the witness was actually 
       unavailable for trial.”); see also Funches v. State, 113 Nev. 916, 920, 944 P.2d 775, 
19      777-78 (1997). Moreover, both witnesses testified to the manner in which they were 
       accosted and the injuries they received in the shooting and thus their testimony had 
20      probative  value  that  was  not  outweighed  by  the  prejudicial  effect.  See  NRS 
       48.035(1). Therefore, the district court did not err in admitting the preliminary 
21      hearing testimony.                                                   

22                                                                           
23                                                                           
1  ECF No. 36-1 at 3. The Nevada Supreme Court’s rejection of this claim was neither contrary to 
2  nor an unreasonable application of clearly established law as determined by the United States 
3  Supreme Court.                                                           
4      The Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions, 
5  the accused shall enjoy the right . . . to be confronted with the witnesses against him.” “[A] 

6  primary interest secured by [the Confrontation Clause] is the right of cross-examination.” 
7  Douglas v. Alabama, 380 U.S. 415, 418 (1965). While “the Confrontation Clause guarantees an 
8  opportunity for effective cross-examination,” it does guarantee “cross-examination that is 
9  effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Van 
10  Arsdall, 475 U.S. 673, 679 (1986) (internal quotation marks omitted); see also Kentucky v. 
11  Stincer, 482 U.S. 730, 739 (1987) (“[T]he Confrontation Clause’s functional purpose i[s] 
12  ensuring a defendant an opportunity for cross-examination.”). The Confrontation Clause bars 
13  “admission of testimonial statements of a witness who did not appear at trial unless he was 
14  unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 

15  Crawford v. Washington, 541 U.S. 36, 53-54 (2004). “[A] witness is not ‘unavailable’ . . . 
16  unless the prosecutorial authorities have made a good-faith effort to obtain his presence at 
17  trial.” Barber v. Page, 390 U.S. 719, 724-25 (1968); see also Christian v. Rhode, 41 F.3d 461, 
18  467 (9th Cir. 1994) (“The lengths to which a prosecutor must go to establish good faith is a 
19  question of reasonableness.”). If “[a] Confrontation Clause violation” occurs, this court 
20  conducts a harmless error analysis. Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir. 2002) 
21  (citing Brecht v. Abrahamson, 507 U.S. 619 (1993) (holding that habeas relief is proper only if 
22  an error by the state courts “had substantial and injurious effect or influence in determining the 
23  jury’s verdict”)).                                                       
1      On October 30, 2006, a preliminary hearing was held for Brass and his three co-
2  defendants, Nunnery, Brandon Bland, and Carlton Fowler. See ECF No. 89-1. Brass was 
3  represented by counsel at this hearing. See id. at 3. Carrizales and Leon-Carlos testified and 
4  were cross-examined by Brass’s counsel and the other three defense attorneys. Id. at 5-28.  
5      Prior to Brass’s trial, the State moved to use Leon-Carlos’s and Carrizales’s preliminary 

6  hearing testimonies at Brass’s trial, explaining that Leon-Carlos and Carrizales resided in rural 
7  Mexico, were not subject to the subpoena power of the state district court, and had no legal 
8  ability to enter the United States following their previous deportations. ECF No. 31-1 at 2. The 
9  State also explained that it “contacted various surviving victims and friends of these two 
10  witnesses in hopes of getting contact information,” but “[n]o person contacted ha[d] an 
11  address” for either witness, and the State was unsuccessful at contacting either witness using 
12  one potential telephone number given to the State by an acquaintance of the witnesses. Id. at 3-
13  4. The state district court granted the motion. See ECF No. 33-3 at 8-9. Thereafter, at Brass’s 
14  trial, the State read its prior questions and the witnesses’ answers from the preliminary hearing 

15  transcript, and Brass’s trial counsel read the four defense attorneys’ prior questions and the 
16  witnesses’ answers. Id. at 9-72.                                         
17      Based on these facts, the Nevada Supreme Court reasonably concluded that there was 
18  no Confrontation Clause violation. Crawford, 541 U.S. at 53-54. First, as previously discussed, 
19  Brass’s counsel cross-examined Leon-Carlos and Carrizales at the preliminary hearing. See 
20  Barber, 390 U.S. at 725 (“[T]here may be some justification for holding that the opportunity 
21  for cross-examination of a witness at a preliminary hearing satisfies the demand of the 
22  confrontation clause where the witness is shown to be actually unavailable.”); see also 
23  California v. Green, 399 U.S. 149, 166 (1970) (“If [the witness] had died or was otherwise 
1  unavailable, the Confrontation Clause would not have been violated by admitting his testimony 
2  given at the preliminary hearing—the right of cross-examination then afforded provides 
3  substantial compliance with the purposes behind the confrontation requirement, as long as the 
4  declarant’s inability to give live testimony is in no way the fault of the State.”) And second, 
5  Leon-Carlos and Carrizales resided in rural Mexico at the time of Brass’s trial and were 

6  reasonably unreachable. Accordingly, because there was no Confrontation Clause violation, the 
7  Nevada Supreme Court reasonably denied relief. Brass is denied federal habeas relief for 
8  Ground 3.                                                                
9  E.  Ground 5                                                             
10      In Ground 5, Brass alleges that his federal constitutional rights were violated when the 
11  state district court impermissibly denied his theory of defense instruction, instead giving a mere 
12  presence instruction, and then allowed a conspiracy instruction that contradicted the mere 
13  presence instruction. ECF No. 24 at 28-30. In Brass’s appeal of his judgment of conviction, the 
14  Nevada Supreme Court held:                                               

15      Brass argues that the district court erred when it denied his instruction on the theory 
       of defense. We disagree. While a defendant “‘is entitled, upon request, to a jury 
16      instruction on his theory of the case so long as there is some evidence . . . to support 
       it’” Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06 (1990) (quoting 
17      Roberts v. State, 102 Nev. 170, 172-73, 717 P.2d 1115, 1116 (1986)), the district 
       court  may  refuse  such  an  instruction  if  it  is  substantially  covered  by  other 
18      instructions, Earl v. State, 111 Nev. 1304, 1308, 904 P.2d 1029, 1031 (1995). As 
       the district court provided a correct “mere presence” instruction, see Walker v. 
19      State, 113 Nev. 853, 869, 944 P.2d 762, 772-73 (1997), we discern no abuse of 
       discretion in denying the proposed instruction, see Nelson v. State, 123 Nev. 534, 
20      548, 170 P.3d 517, 527 (2007) (reviewing district court’s decision concerning jury 
       instructions for abuse of discretion).                               
21                                                                           
22                                                                           
23                                                                           
1  ECF No. 36-1 at 2-3. The Nevada Supreme Court’s rejection of this claim was neither contrary 
2  to nor an unreasonable application of clearly established law as determined by the United States 
3  Supreme Court.                                                           
4      Issues relating to jury instructions are not cognizable in federal habeas corpus unless 
5  they violate due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991); see also Gilmore v. 

6  Taylor, 508 U.S. 333, 342 (1993) (“[W]e have never said that the possibility of a jury 
7  misapplying state law gives rise to federal constitutional error.”). The question is “‘whether the 
8  ailing instruction by itself so infected the entire trial that the resulting conviction violates due 
9  process’, . . . not merely whether ‘the instruction is undesirable, erroneous, or even universally 
10  condemned.’” Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 
11  U.S. 141, 146-47 (1973)). A challenged instruction “‘may not be judged in artificial isolation,’ 
12  but must be considered in the context of the instructions as a whole and the trial record.” 
13  Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147); see also United States v. Frega, 179 
14  F.3d 793, 806 n.16 (9th Cir. 1999) (explaining that a court inquires as to “whether the 

15  instructions as a whole are misleading or inadequate to guide the jury’s deliberation” (internal 
16  citations omitted)). Furthermore, jurors are presumed to follow the instructions that they are 
17  given. United States v. Olano, 507 U.S. 725, 740 (1993). Even if an instruction contains a 
18  constitutional error, the court must then “apply the harmless-error analysis mandated by 
19  Brecht[ v. Abrahamson, 507 U.S. 619 (1993)].” Calderon v. Coleman, 525 U.S. 141, 146 
20  (1998). The question is whether the error had a “substantial and injurious effect or influence in 
21  determining the jury’s verdict.” Id. at 145.                             
22      The heart of Brass’s argument is that the district court prevented him from establishing 
23  his defense theory by denying his proposed instructions. See Mathews v. United States, 485 
1  U.S. 58, 63 (1988) (“As a general proposition a defendant is entitled to an instruction as to any 
2  recognized defense for which there exists evidence sufficient for a reasonable jury to find in his 
3  favor.”). Brass’s proposed jury instruction provided:                    
4      It is the defendant’s theory of defense that he was not present on the night of 9/15/06 
       on Eastern where the robbery occurred. The defense maintains he was merely 
5      present sometime around the date of the robbery as evidenced by his fingerprint on 
       the gate. It is also the defendant’s theory of defense that he was merely present at 
6      the scene of the robbery which occurred on 9/22/06 on Pecos, and did not know 
       Eugene Nunnery was going to rob and shoot the victims. It is the State’s burden to 
7      prove that the defendant was present at the scene of the crimes and knowingly, 
       voluntarily and willfully participated in the robberies. If the State fails to prove this 
8      beyond a reasonable doubt, you must find the defendant not guilty.   

9  ECF No. 33-5 at 2. The state district court refused to give this instruction, explaining “the law 
10  says the defense is entitled to an instruction on their theory of the case, but I think their theory 
11  of the case is mere presence and we have a mere presence instruction and so I think the defense 
12  theory of the case is being instructed.” ECF No. 33-4 at 5. The mere presence instruction given 
13  by the state district court provided:                                    
14      Mere presence at the scene of the crime and knowledge that a crime is being 
       committed are not sufficient to establish that the defendant aided and abetted the 
15      crime, unless you find beyond a reasonable doubt that the Defendant is a participant 
       and not merely a knowing spectator. However, the presence of a person at the scene 
16      of a crime and companionship with another person engaged in the commission of 
       the crime and a course of conduct before and after the offense are circumstances 
17      which may be considered in determining whether such person aided and abetted the 
       commission of that crime.                                            
18                                                                           
19  ECF No. 33-6 at 38.                                                      
20      The jury was also instructed on conspiracies:                        
21      Evidence that a person was in the company or associated with one or more other 
       persons alleged or proven to have been members of a conspiracy is not, in itself, 
22      sufficient to prove that such person was a member of the alleged conspiracy. 
       However, you are instructed that presence, companionship, and conduct before, 
23      during and after the offense are circumstances from which one’s participation in 
       the criminal intent may be inferred.                                 
1                                                                           
2  Id. at 36. Brass’s trial counsel objected to this instruction because it “contradict[ed] the mere 
3  presence instruction.” ECF No. 33-4 at 13. The state district court overruled the objection. Id.  
4      The Nevada Supreme Court reasonably denied relief to Brass. Brass’s proposed 
5  instruction on mere presence was rejected in favor of another mere presence instruction. See 

6  ECF Nos. 33-5 at 2, ECF No. 33-6 at 38. Although it was not given in the manner Brass 
7  desired, Brass’s theory of defense—that he was merely present during the September 22, 2006 
8  events—was presented in the jury instructions. See Mathews, 485 U.S. at 63. Therefore, this 
9  court cannot conclude that Brass’s due process rights were violated. Estelle, 502 U.S. at 72 
10  (1991). Turning to the conspiracy jury instruction, the Court disagrees that this instruction 
11  contradicts the mere presence instruction. Rather, both instructions, although stated in slightly 
12  different ways, provide that while presence is one circumstance which may be considered in 
13  determining participation, evidence only of mere presence or association alone is not sufficient 
14  evidence. Thus, Brass fails to demonstrate a violation of his due process rights. Id. Because the 

15  Nevada Supreme Court reasonably denied this claim, Brass is denied federal habeas relief for 
16  Ground 5.                                                                
17  F.  Ground 6                                                             
18      In Ground 6, Brass raises six allegations of ineffectiveness of his trial counsel. In 
19  Strickland, the Supreme Court propounded a two-prong test for analysis of claims of ineffective 
20  assistance of counsel requiring the petitioner to demonstrate (1) that the attorney’s 
21  “representation fell below an objective standard of reasonableness,” and (2) that the attorney’s 
22  deficient performance prejudiced the defendant such that “there is a reasonable probability that, 
23  but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 
1  Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). A court considering a claim of 
2  ineffective assistance of counsel must apply a “strong presumption that counsel’s conduct falls 
3  within the wide range of reasonable professional assistance.” Id. at 689. The petitioner’s burden 
4  is to show “that counsel made errors so serious that counsel was not functioning as the 
5  ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to 

6  establish prejudice under Strickland, it is not enough for the habeas petitioner “to show that the 
7  errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the 
8  errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is 
9  reliable.” Id. at 687.                                                   
10      Where a state district court previously adjudicated the claim of ineffective assistance of 
11  counsel under Strickland, establishing that the decision was unreasonable is especially difficult. 
12  See Harrington, 562 U.S. at 104–05. In Harrington, the United States Supreme Court 
13  instructed:                                                              
14      The standards created by Strickland and § 2254(d) are both “highly deferential,” 
       [Strickland, 466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 
15      2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is 
       “doubly” so, Knowles [v. Mirzayance, 556 U.S. 111, 123 (2009)]. The Strickland 
16      standard is a general one, so the range of reasonable applications is substantial. 556 
       U.S., at 123, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger 
17      of equating unreasonableness under Strickland with unreasonableness under § 
       2254(d). When § 2254(d) applies, the question is not whether counsel’s actions 
18      were reasonable. The question is whether there is any reasonably argument that 
       counsel satisfied Strickland’s deferential standard.                 
19                                                                           
20  562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal 
21  quotation marks omitted) (“When a federal court reviews a state court’s Strickland 
22  determination under AEDPA, both AEDPA and Strickland’s deferential standards apply; 
23  hence, the Supreme Court’s description of the standard as doubly deferential.”). 
1  //                                                                       
2      1.   Subpart a                                                       
3      In Ground 6(a), Brass alleges that his trial counsel failed to investigate the physical 
4  evidence presented at trial or to hire appropriate experts to refute that physical evidence. ECF 
5  No. 24 at 30. Specifically, Brass argues that his trial counsel failed to secure an expert to 

6  independently test the bullet fragment found at the September 22, 2006 crime scene or offer 
7  testimony that the bullet fragment could not be attributed to the revolver found at his parents’ 
8  residence, failed to investigate whether the revolver actually belonged to Brass, and failed to test 
9  Brass’s sweatshirts for gun powder residue. Id. at 31-32. In Brass’s appeal of the denial of his 
10  state habeas petition, the Nevada Supreme Court held:                    
11      [A]ppellant  claimed  counsel  was  ineffective  for  failing  to  retain  and  present 
       evidence by a ballistics expert to prove that a bullet fragment recovered from the 
12      second crime scene was not fired from a revolver found in appellant’s home. 
       Appellant  failed  to  demonstrate  deficiency  or  prejudice.  Counsel  was  not 
13      objectively  unreasonable  for  not  retaining  such  an  expert  when  no  evidence 
       suggested that the revolver was at the crime scene. Further, despite having been 
14      granted an evidentiary hearing, appellant presented no evidence of what such an 
       expert would have said and thus failed to demonstrate a reasonable probability of a 
15      different outcome had counsel investigated the bullet fragment. See Molina v. State, 
       120 Nev. 185, 192, 87 P.3d 533, 538 (2004). We therefore conclude that the district 
16      court did not err in denying this claim.                             

17      [A]ppellant [also] claimed counsel was ineffective for failing to retain and present 
       evidence by a forensic expert that appellant’s hoodies did not have any gunshot 
18      residue on them. Appellant failed to demonstrate deficiency or prejudice. Appellant 
       did not demonstrate that it was objectively unreasonable for counsel to not have 
19      tested clothing that was retrieved nearly a week after one crime and nearly two 
       weeks after another. Further, appellant presented no evidence of what such an 
20      expert would have said and thus failed to demonstrate a reasonable probability of a 
       different outcome had counsel investigated the hoodies.  See id.  We therefore 
21      conclude that the district court did not err in denying this claim.  

22                                                                           
23                                                                           
1  ECF No. 40-2 at 3-4. The Nevada Supreme Court’s rejection of Brass’s Strickland claim was 
2  neither contrary to nor an unreasonable application of clearly established law as determined by 
3  the United States Supreme Court.                                         
4      Defense counsel has a “duty to make reasonable investigations or to make a reasonable 
5  decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. 

6  Additionally, “[i]n any ineffectiveness case, a particular decision not to investigate must be 
7  directly assessed for reasonableness in all the circumstances, applying a heavy measure of 
8  deference to counsel’s judgments.” Id. This investigatory duty includes investigating the 
9  defendant’s “most important defense,” Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994), 
10  and investigating and introducing evidence that demonstrates factual innocence or evidence that 
11  raises sufficient doubt about the defendant’s innocence. Hart v. Gomez, 174 F.3d 1067, 1070 
12  (9th Cir. 1999). When the record demonstrates that trial counsel was well-informed, and the 
13  defendant fails to provide what additional information would have been gained by the 
14  investigation he now claims was necessary, an ineffective assistance claim fails. Eggleston v. 

15  United States, 798 F.2d 374, 376 (9th Cir. 1986).                        
16      First, Brass contends that his trial counsel should have independently tested the bullet 
17  fragment found at the September 22, 2006 crime scene to show that it could not have been from 
18  the revolver found at his parents’ residence. ECF No. 24 at 30-32. During Brass’s trial counsel’s 
19  cross-examination of the State’s firearm expert, Brass’s trial counsel clarified that the “chunk of 
20  lead” that was found at the September 22, 2006 crime scene could have come from a variety of 
21  different types of guns, not just from a revolver. ECF No. 33-3 at 121-22. And during his closing 
22  argument, Brass’s trial counsel argued that the bullet fragment found at the September 22, 2006 
23  crime scene “could have been from five different calibers of guns,” not necessarily the revolver. 
1  ECF No. 33-4 at 118. Because Brass’s trial counsel was able to highlight the fact that the bullet 
2  fragment may not have come from the revolver during cross-examination, it cannot be 
3  determined that Brass’s trial counsel was deficient for failing to call his own expert witness to 
4  accomplish the same task. Strickland, 466 U.S. at 688; see also Harrington, 562 U.S. at 111 (“In 
5  many instances cross-examination will be sufficient to expose defects in an expert’s 

6  presentation.”)                                                          
7      Second, Brass contends that his trial counsel should have investigated whether the 
8  revolver belonged to Brass. ECF No. 24 at 30-32. During Brass’s trial counsel’s cross-
9  examination of the State’s crime scene analyst, Brass’s trial counsel clarified that there was no 
10  evidence linking the revolver specifically to Brass. ECF No. 33-4 at 31-33. And during his 
11  closing argument, Brass’s trial counsel argued that “[t]here’s absolutely no evidence” that the 
12  revolver was Brass’s gun. ECF No. 33-4 at 117. Later, during Brass’s post-conviction 
13  evidentiary hearing, Brass’s trial counsel testified that he did not consider hiring an expert to 
14  challenge the admissibility of the revolver because “nobody was claiming that [the revolver] was 

15  the same weapon involved in the murders, in the robberies.” ECF No. 39 at 7. Because it was 
16  undisputed that the revolver did not kill the two victims and because Brass’s trial counsel was 
17  able to cast doubt about Brass’s link to the revolver during cross-examination, it cannot be 
18  concluded that Brass’s trial counsel was deficient for failing to fulfill his investigative duties. 
19  Strickland, 466 U.S. at 688, 691.                                        
20      Third, Brass contends that his trial counsel should have investigated whether his 
21  sweatshirts contained gun powder residue. ECF No. 24 at 30-32. It does not appear that this was 
22  an issue discussed at Brass’s trial or post-conviction evidentiary hearing. Thus, it is difficult to 
23  assess whether Brass’s trial counsel was deficient. In fact, it may have been a strategic decision 
1  to not test the sweatshirt, if there was any possible residue still available to test. See, e.g., Skinner 
2  v. Quarterman, 576 F.3d 214 (5th Cir. 2009) (counsel was not deficient for failing to conduct 
3  DNA tests of crime scene evidence because there was a risk that such testing would reveal that 
4  the DNA belonged to the defendant).                                      
5      However, regardless of whether Brass’s trial counsel was deficient regarding the 

6  foregoing investigatory decisions, Brass must also demonstrate that “there is a reasonable 
7  probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 
8  been different.” Strickland, 466 U.S. at 694. As the Nevada Supreme Court reasonably 
9  concluded, Brass cannot meet this burden. There is no evidence that a test of the bullet fragment 
10  would have shown that it was not from the revolver, that the revolver was not Brass’s, or that 
11  Brass’s sweatshirts lacked gun powder residue. See Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 
12  2019) (“Strickland prejudice is not established by mere speculation.”).  
13      Because the Nevada Supreme Court reasonably determined that Brass failed to 
14  demonstrate that this trial counsel was ineffective, Brass is denied federal habeas relief for 

15  Ground 6(a).                                                             
16      2.   Subpart b                                                       
17      In Ground 6(b), Brass alleges that his trial counsel refused to allow him to testify at trial. 
18  ECF No. 24 at 32. Brass elaborates that his trial counsel advised him that the State “was 
19  aggressive in its tactics” and “would twist the meaning of [his] words,” and that this advice made 
20  him “felt [sic] as if he had no meaningful choice to testify.” Id. at 33. In Brass’s appeal of the 
21  denial of his state habeas petition, the Nevada Supreme Court held:      
22      [A]ppellant claimed counsel was ineffective for refusing to allow him to testify at 
       trial. Appellant failed to demonstrate deficiency or prejudice. Appellant, who posed 
23      no questions to counsel and presented no other evidence to support his claim, failed 
       to demonstrate the facts underlying his claim by a preponderance of the evidence. 
1      Further, the district court’s finding that appellant was advised that the right to testify 
       was his, not counsel’s, choice, is supported by substantial evidence in the record. 
2      We therefore conclude that the district court did not err in denying this claim. 

3                                                                           
  ECF No. 40-2 at 5. The Nevada Supreme Court’s rejection of Brass’s Strickland claim was 
4                                                                           
  neither contrary to nor an unreasonable application of clearly established law as determined by 
5                                                                           
  the United States Supreme Court.                                          
6                                                                           
       “[A] defendant in a criminal case has the right to take the witness stand and to testify in 
7                                                                           
  his or her own defense.” Rock v. Arkansas, 483 U.S. 44, 49 (1987). And this decision of 
8                                                                           
  whether to testify on his own behalf is one “the accused has the ultimate authority to make.” 
9                                                                           
  Jones v. Barnes, 463 U.S. 745, 751 (1983).                                
10                                                                           
       The state district court canvassed Brass about his right to testify. See ECF No. 33-2 at 5-
11                                                                           
  7. Among other things, the state district court explained that it “want[ed Brass] to talk to [his 
12                                                                           
  trial counsel] about it when the time comes and make a joint decision on whether or not [Brass 
13                                                                           
  was] going to testify.” Id. at 7. The state district court continued, “[u]ltimately, the decision is 
14                                                                           
  yours. [Trial counsel] can only give you advice, but he’s pretty good at giving advice, so you 
15                                                                           
  need to take that into consideration.” Id. Brass indicated that he understood. Id. at 5-7. 
16                                                                           
       The state district court’s proper advisement that only Brass could decide whether to 
17                                                                           
  testify refutes Brass’s argument that he felt that he had no choice regarding testifying. 
18                                                                           
  Additionally, beyond his own self-serving statements in his petition, Brass fails to present any 
19                                                                           
  evidence regarding his trial counsel’s actions in this regard. Rather, it appears that Brass’s trial 
20                                                                           
  counsel was simply giving Brass candid advice about the consequences of testifying. 
21                                                                           
  Accordingly, the Nevada Supreme Court reasonably concluded that Brass failed to demonstrate 
22                                                                           
  deficiency. Strickland, 466 U.S. at 688. Brass is denied federal habeas relief for Ground 6(b).  
23                                                                           
       3.   Subpart c                                                       
1      In Ground 6(c), Brass alleges that his trial counsel failed to object to two instances of 
2  alleged prosecutorial misconduct during closing argument. ECF No. 24 at 33. Specifically, Brass 
3  alleges that the State suggested that he was a liar and vouched for the credibility of a witness. Id. 
4  at 33-34. In Brass’s appeal of the denial of his state habeas petition, the Nevada Supreme Court 
5  held:                                                                    

6      [A]ppellant claimed counsel was ineffective for failing to object to prosecutorial 
       misconduct  in  opening  and  closing  statements  where  the  State  inferred  that 
7      appellant was a story-changing liar and vouched for the credibility of a witness. 
       Appellant failed to demonstrate deficiency or prejudice. The State neither called 
8      appellant a liar nor vouched for any witness’s credibility. Rather, the State listed 
       appellant’s various charges in his version of events and suggested why the ultimate 
9      version was not likely. Such inferences are permissible in closing argument. Ross 
       v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990). Further, the State simply 
10      pointed out the lack of motive for its witness [to] fabricate, which did not rise to 
       vouching. See Browning v. State, 120 Nev. 347, 359, 91 P.3d 39, 48 (2004). We 
11      therefore conclude that the district court did not err in denying this claim. 

12  ECF No. 40-2 at 4. The Nevada Supreme Court’s rejection of Brass’s Strickland claim was 
13  neither contrary to nor an unreasonable application of clearly established law as determined by 
14  the United States Supreme Court.                                         
15      The State made the following comments during its closing argument:   
16      . . . I want you to think about common sense when you consider the explanation 
       George Brass provided to Detective McGrath. Now, I’m going to start in reverse 
17      order in this case; that is, with the crime scene of September 22, 2006. 

18      The defendant’s explanation, ultimately his explanation was that he was with three 
       other guys, Eugene Nunnery, Brandon Bland and Carlton Fowler when the three of 
19      them, unbeknownst to George Brass, decided apparently to commit a robbery when 
       shots rang out. And think about that explanation in light of your common sense 
20      because remember it was his third or fourth version of events.       

21      Initially George Brass said to Detective McGrath, I don’t know anything about this. 
       Explanation number one. And when Detective McGrath, now Sergeant McGrath, 
22      pulled out that cell phone that belonged to the defendant, the explanation changed. 
       The defendant said, Well, somebody else may have had my phone and dropped it 
23      here.                                                                
1      And eventually that morphed into yet a third version of events, which was, I walked 
       alone to this apartment complex and ran into a couple of friends of mine named 
2      Drey and Money Mac and I heard some gunshots. And that version too morphed in 
       yet - - into yet another version, which was, Okay, I was in a car with Eugene 
3      Nunnery, Brandon Bland and Carlton Fowler. Indeed we ended up at this apartment 
       complex and something happened between Eugene Nunnery and one of these 
4      Hispanic guys and shots rang out and I ran.                          

5      At least four different versions of events. Deny and then adapt your story to fit the 
       evidence you know the police have against you. That’s what George Brass did. 
6                                                                           

7  ECF No. 33-4 at 77-78. Later, the State commented:                       
8      And think about this: David, the young man on the balcony who saw this, doesn’t 
       even know the victims in this case. What possible reason would he have to fabricate 
9      and make up this notion that all four robbers had guns if they didn’t? A completely 
       objective independent eyewitness.                                    
10                                                                           
11  Id. at 79-80.                                                            
12      The Nevada Supreme Court reasonably concluded that Brass failed to demonstrate 
13  deficiency on the part of his trial counsel for failing to object to these comments. Strickland, 
14  466 U.S. at 688. Indeed, “[t]he relevant question” regarding prosecutorial misconduct, “is 
15  whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the 
16  resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) 
17  (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). It cannot be concluded that 
18  either of the foregoing comments infected Brass’s trial with unfairness.  
19      First, the Nevada Supreme Court reasonably concluded that the State did not suggest 
20  that Brass was a liar. Rather, the State merely commented on the evidence presented at trial and 
21  reasonable inferences that could be drawn from that evidence. See Drayden v. White, 232 F.3d 
22  704, 713 (9th Cir. 2000) (concluding that the State’s closing argument did not infect the trial 
23  with unfairness because “the prosecutor’s statements were supported by the evidence and 
1  reasonable inferences that could be drawn from the evidence”). In fact, Detective Michael 
2  McGrath testified that Brass initially told him that he “[d]idn’t know anything” about the 
3  second shooting incident, then he said that he was in the area of the shooting, then he said that 
4  one of his co-defendants may have had his cellular telephone and left it at the scene, and then 
5  he said that he was with his co-defendants when Nunnery bumped shoulders with one of the 

6  victims resulting in Nunnery firing his weapon. ECF No. 33-3 at 140, 166, 168, 178-79, 182-
7  83. The State’s closing argument was supported by this testimony. See ECF No. 33-4 at 77-78. 
8      Second, the Nevada Supreme Court reasonably concluded that the State did not vouch 
9  for any witness’s credibility. “Vouching consists of placing the prestige of the government 
10  behind a witness through personal assurances of the witness’s veracity, or suggesting that 
11  information not presented to the jury supports the witness’s testimony.” United States v. 
12  Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). Here, the State merely contended that a 
13  witness, David, was telling the truth. The State did not personally assure David’s veracity or 
14  suggest that it had extra-record facts supporting David’s testimony. See ECF No. 33-4 at 79-80. 

15  This was proper. See Necoechea 986 F.2d at 1279 (“The prosecutor here argued that [the 
16  witness] told the truth because, if she were lying, she would have done a better job. This is 
17  simply an inference from evidence in the record. It is not . . . a reference to extra-record facts or 
18  a personal guarantee of [the witness]’s veracity. The prosecutor merely argued that [the 
19  witness] was telling the truth, an argument the prosecutor had to make in order to convict [the 
20  defendant]. These statements do not imply that the government is assuring [the witness]’s 
21  veracity, and do not reflect the prosecutor’s personal beliefs.”).       
22      Because the Nevada Supreme Court reasonably denied Brass’s Strickland claim, Brass 
23  is denied federal habeas relief for Ground 6(c).                         
1  ///                                                                      
2  ///                                                                      
3      4.   Subpart d                                                       
4      In Ground 6(d), Brass alleges that his trial counsel failed to object to the unlawfully 
5  composed jury that was void of African Americans. ECF No. 24 at 34. Brass elaborates that he 

6  recalls there only being two African Americans in the entire venire, no African American jurors 
7  in the petit jury, and a great portion of members of Hispanic descent in the final petit jury. Id. at 
8  34-35. In Brass’s appeal of the denial of his state habeas petition, the Nevada Supreme Court 
9  held:                                                                    
10      [A]ppellant claimed counsel was ineffective for failing to object to the jury being 
       void of a cross-section of African Americans. Appellant failed to demonstrate 
11      deficiency or prejudice. “The Sixth Amendment does not guarantee a jury or even 
       a venire that is a perfect cross section of the community,” and appellant neither 
12      made any argument nor presented any evidence that African Americans were 
       systematically excluded from the venire. Williams v. State, 121 Nev. 934, 939-40, 
13      125 P.3d 627, 631 (2005). Indeed, appellant conceded that the venire contained at 
       least two African Americans. We therefore conclude that the district court did not 
14      err in denying this claim.                                           

15  ECF No. 40-2 at 5. The Nevada Supreme Court’s rejection of Brass’s Strickland claim was 
16  neither contrary to nor an unreasonable application of clearly established law as determined by 
17  the United States Supreme Court.                                         
18      Although “petit juries must be drawn from a source fairly representative of the 
19  community,” there is “no requirement that petit juries actually chosen must mirror the 
20  community and reflect the various distinctive groups in the population.” Taylor v. Louisiana, 
21  419 U.S. 522, 538 (1975). Indeed, “Defendants are not entitled to a jury of any particular 
22  composition.” Id. The United States Supreme Court has established the following requirements 
23  for establishing a prima facie violation of the fair-cross-section requirement:  
1      In order to establish a prima facie violation of the fair-cross-section requirement, 
       the defendant must show (1) that the group alleged to be excluded is a “distinctive” 
2      group in the community; (2) that the representation of this group in venires from 
       which juries are selected is not fair and reasonable in relation to the number of such 
3      persons in the community; and (3) that this underrepresentation is due to systematic 
       exclusion of the group in the jury-selection process.                
4                                                                           
5  Duren v. Missouri, 439 U.S. 357, 364 (1979). Under the third prong, “[a] showing that a jury 
6  venire underrepresents an identifiable group is, without more, an insufficient showing of 
7  systematic exclusion.” See Randolph v. California, 380 F.3d 1133, 1141 (9th Cir. 2004).  
8      Brass has not alleged that African Americans were systematically excluded from the 
9  venire. Duren, 439 U.S. at 364. Rather, Brass admits that there were two African Americans in 
10  the venire. ECF No. 24 at 34. Accordingly, because Brass fails to meet the third Duren prong 
11  demonstrating systematic exclusion, the Nevada Supreme Court reasonably concluded that 
12  Brass’s trial counsel was not deficient for not objecting to the venire. Strickland, 466 U.S. at 688. 
13  Brass is denied federal habeas relief for Ground 6(d).                   
14      5.   Subpart e                                                       
15      In Ground 6(e), Brass alleges that his trial counsel failed to object Jury Instruction Nos. 8, 
16  11, 12, and 33. ECF No. 24 at 35.                                        
17           a.   Jury Instruction No. 8                                     
18      Jury Instruction No. 8 provided, in part:                            
19      Murder of the first degree is murder which is perpetrated by means of any kind of 
       willful,  deliberate,  and  premeditated  killing.  All  three  elements—willfulness, 
20      deliberation, and premeditation—must be proven beyond a reasonable doubt before 
       an accused can be convicted of first-degree murder. Willfulness is the intent to kill. 
21      There need be no appreciable space of time between formation of the intent to kill 
       and the act of killing.                                              
22                                                                           
23                                                                           
1  ECF No. 33-6 at 17. And Jury Instruction No. 13 provided: “All murder which is not murder of 
2  the first degree of murder is murder of the second degree. Murder of the second degree is 
3  murder with malice aforethought, but without the admixture of premeditation and deliberation.” 
4  Id. at 22.                                                               
5      Brass argues that, when read in conjunction, Jury Instruction Nos. 8 and 13 cause 

6  confusion because Jury Instruction No. 13, by employing the term “malice aforethought” 
7  instead of “willfulness,” impresses upon the jury that “willfulness” and “malice aforethought” 
8  are separate and mutually exclusive elements. ECF No. 24 at 36. In Brass’s appeal of the denial 
9  of his state habeas petition, the Nevada Supreme Court held:             
10      [A]ppellant claimed counsel was ineffective for failing to object to jury instruction 
       no. 8, which defined willful, deliberate, and premediated first-degree murder, on 
11      the ground that it erased the distinction between first- and second-degree murder. 
       Appellant failed to demonstrate deficiency or prejudice. The language in jury 
12      instruction nos. 8 and 9 tracks verbatim that set forth in Byford v. State, 116 Nev. 
       215, 236-37, 994 P.2d 700, 714-15 (2000). Further, even if the instruction were 
13      erroneous, appellant was convicted not only of first-degree murder but also of the 
       robbery during the course of which the murder occurred such that he would have 
14      been liable for first-degree murder under the felony-murder rule. We therefore 
       conclude that the district court did not err in denying this claim.  
15                                                                           
16  ECF No. 40-2 at 2-3. This ruling was reasonable.                         
17      Jury Instruction No. 8 mirrors the instruction formulated by the Nevada Supreme Court 
18  “for use by the district courts in cases where defendants are charged with first-degree murder 
19  based on willful, deliberate, and premeditated killing.” Byford v. State, 116 Nev. 215, 236, 994 
20  P.2d 700, 714 (2000). Further, Nev. Rev. Stat. § 200.010(1) provides that “[m]urder is the 
21  unlawful killing of a human being . . . [w]ith malice aforethought,” and Nev. Rev. Stat. § 
22  200.030(2) provides that “[m]urder of the second degree is all other kinds of murder” not 
23  amounting to first-degree murder. Jury Instruction No. 13 echoes these statutes. Therefore, 
1  because Jury Instruction Nos. 8 and 13 comply with Nevada law, the Nevada Supreme Court 
2  reasonably concluded that Brass’s trial counsel was not deficient for not objecting to these 
3  instructions. Strickland, 466 U.S. at 688.                               
4           b.   Jury Instruction Nos. 11 and 12                            
5      Jury Instruction No. 11 provided:                                    

6      There  is  a  kind  of  murder  which  carries  with  it  conclusive  evidence  of 
       premeditation and malice aforethought. This class of murder is murder committed 
7      in the perpetration or attempted perpetration of robbery. Therefore, a killing which 
       is committed in the perpetration of robbery or attempted robbery is deemed to be 
8      Murder of the First Degree, whether the killing was intentional or unintentional or 
       accidental. This is called the Felony-Murder Rule. The intent to perpetrate or 
9      attempt to perpetrate robbery must be proven beyond a reasonable doubt. In order 
       for the Felony-Murder rule to apply under a robbery theory, the intent to take the 
10      property must be formed prior to the act constituting the killing.   

11  ECF No. 33-6 at 20. And Jury Instruction No. 12 provided, in part:       
12      The State has alleged that the defendant is criminally liable for the charge of First 
       Degree Murder under one or more principles . . . of criminal liability. . . . Your 
13      verdict must be unanimous as to the charge. However, you do not have to agree on 
       the theory of guilt or the principle of criminal liability. It is sufficient that each of 
14      you find beyond a reasonable doubt that the murder, under any one of the principles 
       of criminal liability, was Murder of the First Degree. Therefore, even if you cannot 
15      agree on whether the facts establish that the Defendant (1) is guilty of Premeditated 
       & Deliberate Murder, or (2) is guilty of Felony Murder, or (3) is liable as an aider 
16      & abettor or (4) is liable as a co-conspirator, your verdict shall be murder of the 
       first degree so long as all of you agree that the evidence establishes the Defendant’s 
17      guilt of murder in the first degree under any one of the principles of criminal 
       liability.                                                           
18                                                                           
19  Id. at 21.                                                               
20      Brass argues that Jury Instructions No. 8, which was discussed previously, and Jury 
21  Instruction No. 11, when presented together, create gross ambiguity. ECF No. 24 at 37. And 
22  Brass argues that Jury Instruction No. 12 suggests that the jurors did not have to come to a 
23                                                                           
1  unanimous decision and reinforces the ambiguity of Jury Instruction Nos. 8 and 11. Id. In 
2  Brass’s appeal of the denial of his state habeas petition, the Nevada Supreme Court held: 
3      Second, appellant claimed counsel was ineffective for failing to object to jury 
       instruction nos. 11 and 12, on the theories that they conflict with jury instruction 
4      no. 8 and that jury instruction no. 12 forced him to defend against the various 
       theories of liability without any proof of their underlying elements. Appellant failed 
5      to demonstrate deficiency or prejudice. Jury instruction no. 12 informed the jury of 
       the State’s alternate theories of liability while other jury instructions informed the 
6      jury of the elements necessary for each of those alternate theories: jury instruction 
       no. 8 for willful, deliberate, and premeditated murder; jury instruction no. 11 for 
7      felony murder; jury instruction no. 21 for conspiracy; and jury instruction no. 28 
       for aiding and abetting. Cf. Tanksley v. State, 113 Nev 844, 849, 944 P.2d 240, 243 
8      (1997) (noting that any ambiguity may be cured by taking the jury instructions as a 
       whole). We therefore conclude that the district court did not err in denying these 
9      claims.                                                              

10  ECF No. 40-2 at 2-3. This ruling was reasonable.                         
11      As the Nevada Supreme Court reasonably noted, Jury Instruction No. 12 discussed the 
12  theories of liability upon which the State relied upon for first-degree murder. See ECF No. 33-6 
13  at 21. Jury Instruction Nos. 8 and 11 further described two of those alternate theories: willful, 
14  deliberate, and premeditated murder in Jury Instruction No. 8, and felony murder in Jury 
15  Instruction No. 11. See id. at 17, 20. Therefore, Jury Instruction Nos. 8, 11, and 12, when read 
16  together, did not create confusion. Brass’s second contention—that Jury Instruction No. 12 
17  allowed the jury to come to a decision that was not unanimous—also lacks merit. See Crawford 
18  v. State, 121 Nev. 744, 750, 121 P.3d 582, 586 (2005) (“Where the State proceeds on 
19  alternative theories of first-degree felony murder and willful, deliberate, and premeditated first-
20  degree murder, we have consistently held that the jury need not unanimously agree on a single 
21  theory of the murder.”); Walker v. State, 113 Nev. 853, 870, 944 P.2d 762, 773 (1997) (“[W]e 
22  conclude that the trial court did not err in instructing the jury that it did not have to 
23  unanimously agree upon a theory of murder”). Accordingly, the Nevada Supreme Court 
1  reasonably concluded that Brass’s trial counsel was not deficient for not objecting to these 
2  instructions. Strickland, 466 U.S. at 688.                               
3           c.   Jury Instruction No. 33                                    
4      Jury Instruction No. 33 provided:                                    
5      The Defendant is presumed innocent until the contrary is proved. This presumption 
       places upon the State the burden of proving beyond a reasonable doubt every 
6      material element of the crime charged and that the Defendant is the person who 
       committed the offense. A reasonable doubt is one based on reason. It is not mere 
7      possible doubt but is such a doubt as would govern or control a person in the more 
       weighty affairs of life. If the mind of the jurors, after the entire comparison and 
8      consideration of all the evidence, are in such a condition that they can say they feel 
       an abiding conviction of the truth of the charge, there is not a reasonable doubt. 
9      Doubt to be reasonable must be actual, not mere possibility or speculation. If you 
       have a reasonable doubt as to the guilt of the Defendant, he is entitled to a verdict 
10      of not guilty.                                                       

11  ECF No. 33-6 at 42.                                                      
12      Brass argues that Jury Instruction No. 33 relieves the State of its burden of proof 
13  because the word “comparison” suggests that the defense has a duty to put forth evidence 
14  refuting the State’s evidence, which improperly shifts the burden of proof onto the defense, and 
15  the word “feel” allows the jury to convict based upon emotions rather than reason. ECF No. 24 
16  at 38. In Brass’s appeal of the denial of his state habeas petition, the Nevada Supreme Court 
17  held:                                                                    
18      [A]ppellant claimed counsel was ineffective for failing to object to jury instruction 
       no. 33, which defined reasonable doubt, on the grounds that it allowed the jury to 
19      convict based on emotion and it shifted the burden of proof to appellant. Appellant 
       failed to demonstrate deficiency or prejudice. The challenged instruction was 
20      mandated by NRS 175.211, which this court has repeatedly upheld. Buchanan v. 
       State, 119 Nev. 201, 221, 69 P.3d 694, 708 (2003). We therefore conclude that the 
21      district court did not err in denying this claim.                    

22  ECF No. 40-2 at 2-3. This ruling was reasonable.                         
23                                                                           
1      “[T]he Due Process Clause protects the accused against conviction except upon proof 
2  beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 
3  charged.” In re Winship, 397 U.S. 358, 364 (1970). “[T]he Constitution does not require that 
4  any particular form of words be used in advising the jury of the government’s burden of proof. 
5  Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable 

6  doubt to the jury.’” Victor v. Nebraska, 511 U.S. 1, 5 (1994) (internal citation omitted) (quoting 
7  Holland v. United States, 348 U.S. 121, 140 (1954)). In assessing the constitutionality of a jury 
8  instruction, it must be determined “whether there is a reasonable likelihood that the jury 
9  understood the instructions to allow conviction based on proof insufficient to meet the Winship 
10  standard.” Id. at 6.                                                     
11      The Ninth Circuit evaluated the same reasonable doubt instruction in Ramirez v. 
12  Hatcher. 136 F.3d 1209, 1210-11 (9th Cir. 1998). The Ninth Circuit held that “[a]lthough [it 
13  did] not herald the Nevada instruction as exemplary, [it] conclude[d] that the overall charge left 
14  the jury with an accurate impression of the government’s heavy burden of proving guilt beyond 

15  a reasonable doubt” such that “the jury charge satisfied the requirements of due process.” Id. at 
16  1215; see also Nevius v. McDaniel, 218 F.3d 940, 944 (9th Cir. 2000) (holding that the 
17  reasonable doubt jury instruction was identical to the one in Ramirez, so “[t]he law of this 
18  circuit thus forecloses Nevius’s claim that his reasonable doubt instruction was 
19  unconstitutional”).                                                      
20      Additionally, Jury Instruction No. 33 complied with Nevada law. See Nev. Rev. Stat. § 
21  175.211 (defining reasonable double and mandating that “[n]o other definition of reasonable 
22  doubt may be given by the court to juries in criminal actions in this State”); see also Buchanan 
23  v. State, 119 Nev. 201, 221, 69 P.3d 694, 708 (2003) (explaining that the Nevada Supreme 
1  Court “has repeatedly reaffirmed the constitutionality of Nevada’s reasonable doubt 
2  instruction” codified in Nev. Rev. Stat. § 175.211). Because Jury Instruction No. 33’s language 
3  has been determined to be constitutional by the Ninth Circuit and because it complied with 
4  Nevada law, the Nevada Supreme Court reasonably concluded that Brass’s trial counsel was 
5  not deficient for not objecting to the instruction. Strickland, 466 U.S. at 688.  

6      Brass is denied federal habeas relief for Ground 6(e).               
7  G.  Ground 7                                                             
8      In Ground 7, Brass raises three allegations of ineffectiveness of his appellate counsel. 
9  The Strickland standard outlined in Ground 6 is also utilized to review appellate counsel’s 
10  actions: a  petitioner must show “that [appellate] counsel unreasonably failed to discover 
11  nonfrivolous issues and to file a merits brief raising them” and then “that, but for his [appellate] 
12  counsel’s unreasonable failure to file a merits brief, [petitioner] would have prevailed on his 
13  appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000).                     
14      1.   Subpart a                                                       

15      In Ground 7(a), Brass alleges that his appellate counsel failed to federalize his claims and 
16  that he was prejudiced by this failure because he was deprived the opportunity to obtain the most 
17  favorable standard of federal review available. ECF No. 24 at 39-40. In Brass’s appeal of the 
18  denial of his state habeas petition, the Nevada Supreme Court held:      
19      [A]ppellant claimed that appellate counsel was ineffective for failing to federalize 
       his claims on direct appeal. Appellant failed to demonstrate prejudice. Appellant 
20      failed to demonstrate that he would have gained a more favorable standard of 
       review on direct appeal had appellate counsel federalized the arguments.  See 
21      Browning, 120 Nev. at 365, 91 P.3d at 52. We therefore conclude that the district 
       court did not err in denying this claim.                             
22                                                                           
23                                                                           
1  ECF No. 40-2 at 6. The Nevada Supreme Court’s rejection of Brass’s claim was neither contrary 
2  to nor an unreasonable application of clearly established law as determined by the United States 
3  Supreme Court.                                                           
4      Brass’s appellate counsel testified at the post-conviction evidentiary hearing that 
5  “[f]ederalizing [an] issue is making sure that you’re preserving the issue for a federal court when 

6  the time comes for the client.” ECF No. 39 at 11. Brass’s appellate counsel explained that there 
7  was no reason he could think of why “Brass’ direct appeal did not include any federal citations.” 
8  Id. at 12. However, when asked if, “[i]n retrospect, [he thought] that it would’ve been better 
9  practice . . . to federalize th[e] issues [in Brass’s] direct appeal,” Brass’s appellate counsel 
10  answered in the affirmative. Id. at 12-13.                               
11      Brass’s appellate counsel raised four issues on direct appeal: the state district court 
12  erred in admitting the revolver, joining the two robbery incidents at trial, denying his theory of 
13  defense jury instruction, and allowing the previous testimony of two witnesses. See ECF No. 
14  35-4 at 2. Even if Brass’s appellate counsel was deficient for failing to federalize these claims, 

15  the Nevada Supreme Court reasonably concluded that Brass fails to demonstrate prejudice. 
16  Strickland, 466 U.S. at 694; Smith, 528 U.S. at 285. Indeed, as the Nevada Supreme Court 
17  reasonably determined, Brass fails to show that his claims would have been reviewed by it 
18  under more favorable standards had his appellate counsel acted differently. See Browning v. 
19  State, 120 Nev. 347, 365, 91 P.3d 39, 52 (2004) (dismissing the argument that the defendant’s 
20  “appellate counsel should have ‘federalized’ the issue and gained a more favorable standard of 
21  review”). Further, regarding federal review, this court did not find that any of Brass’s direct 
22  appeal claims were unexhausted; rather, each of these claims have been reviewed by this court. 
23  See Grounds 1, 2, 3, and 5 supra; see also ECF No. 84 at 5. Accordingly, because the Nevada 
1  Supreme Court reasonably denied Brass’s ineffective-assistance-of-appellate-counsel claim, 
2  Brass is denied federal habeas relief for Ground 7(a).                   
3  ///                                                                      
4      2.   Subpart b                                                       
5      In Ground 7(b), Brass alleges that his appellate counsel failed to raise ineffective-

6  assistance-of-counsel claims. ECF No. 24 at 40. In Brass’s appeal of the denial of his state 
7  habeas petition, the Nevada Supreme Court held:                          
8      [A]ppellant argued that appellate counsel was ineffective for failing to raise all of 
       the  substantive  claims  that  underlaid  his  ineffective-assistance-of-trial-counsel 
9      claims. For the reasons discussed previously, appellant failed to demonstrate that 
       appellate counsel was deficient or that he was prejudiced. We therefore conclude 
10      that the district court did not err in denying this claim.           

11  ECF No. 40-2 at 6. This ruling was reasonable.                           
12      To the extent that Brass argues that his appellate counsel should have raised ineffective-
13  assistance-of-counsel claims in his direct appeal, such an argument lacks merit. See Gibbons v. 
14  State, 97 Nev. 520, 523, 634 P.2d 1214, 1216 (1981) (concluding “that the more appropriate 
15  vehicle for presenting a claim of ineffective assistance of counsel is through post-conviction 
16  relief”); Corbin v. State, 111 Nev. 378, 381, 892 P.2d 580, 582 (1995) (explaining that the 
17  Nevada Supreme Court “has consistently concluded that it will not entertain claims of 
18  ineffective assistance of counsel on direct appeal”). Furthermore, regarding any argument that 
19  Brass’s appellate counsel was ineffective for failing to raise any of the substantive claims that 
20  underlaid his ineffective-assistance-of-trial-counsel claims, the Nevada Supreme Court 
21  reasonably determined that Brass failed to demonstrate deficiency on the part of his appellate 
22  counsel. Strickland, 466 U.S. at 688. None of the underlying claims presented in Ground 6 had 
23  any merit, see Ground 6 supra, so Brass fails to demonstrate “that, but for his [appellate] 
1  counsel’s” alleged deficiencies, he “would have prevailed on his appeal.” Smith, 528 U.S. at 
2  285. Because the Nevada Supreme Court reasonably denied this claim, Brass is denied federal 
3  habeas relief for Ground 7(b).                                           
4      3.   Subpart c                                                       
5      In Ground 7(c), Brass alleges that his appellate counsel failed to argue that the state 

6  district court erred in granting his motion to withdraw his guilty plea. ECF No. 24 at 40. In 
7  Brass’s appeal of the denial of his state habeas petition, the Nevada Supreme Court held: 
8      [A]ppellant claimed that appellate counsel was ineffective for failing to argue that 
       the district court erred when it granted appellant’s presentence motion to withdraw 
9      his guilty plea. Appellant failed to demonstrate deficiency or prejudice. The district 
       court may grant a motion to withdraw a guilty plea “for any ‘substantial reason’ if 
10      it is ‘fair and just,’” and this court reviews that decision for an abuse of discretion. 
       Woods v. State, 114 Nev. 468, 475, 958 P.2d 91, 95 (1998) (quoting State v. Second 
11      Judicial Dist. Court, 85 Nev. 381, 385, 455 P.2d 923, 926 (1969). Appellant failed 
       to demonstrate that the district court abuse its discretion in granting appellant’s 
12      motion  to  withdraw  and,  thus,  that  his  claim  would  have  had  a  reasonable 
       probability of success on appeal. We therefore conclude that the district court did 
13      not err in denying this claim. [Footnote 2: To the extent appellant claimed that the 
       district court erred in granting the motion to withdraw guilty plea, appellant’s claim 
14      could have been raised on direct appeal and was thus procedurally barred absent a 
       demonstration of good cause and actual prejudice. NRS 34.810(1)(b)(2). For the 
15      reasons discussed above, appellant’s claim of ineffective assistance of appellate 
       counsel did not demonstrate good cause or actual prejudice.].        
16                                                                           
17  ECF No. 40-2 at 6-7. The Nevada Supreme Court’s rejection of Brass’s claim was neither 
18  contrary to nor an unreasonable application of clearly established law as determined by the 
19  United States Supreme Court.                                             
20      On April 2, 2008, Brass pleaded guilty to two counts of robbery with the use of a deadly 
21  weapon. ECF No. 29-4 at 7; see also ECF No. 29-1 (signed guilty plea agreement). In response 
22  to the state district court’s questioning, Brass indicated that he believed it was in his best interest 
23  to take the plea deal rather than “to go to trial and risk getting convicted of murder and attempted 
1  murder.” Id. at 8. The state district court found Brass’s “plea of guilt [was] freely and voluntarily 
2  given,” and that Brass “underst[ood] the nature of the offense and consequences of the plea.” Id. 
3  at 14.                                                                   
4      On June 6, 2008, Brass’s trial counsel filed a motion to withdraw Brass’s guilty plea. 
5  ECF No. 29-6. Brass’s trial counsel explained that Brass “allege[d] his factual innocence in this 

6  matter” and that “the Court’s comments immediately prior to the entry of [his] plea unduly 
7  coerced him to enter into these negotiations.” Id. at 3. The State opposed the motion. ECF No. 
8  30. A hearing was held on June 16, 2008, in which the state district court granted the motion. 
9  ECF No. 30-1 at 2. The state district court indicated,                   
10      Mr. Brass, I believe, simply has buyer’s remorse. He knew exactly what he was 
       pleading to. However, sometimes people who make their own bed should then sleep 
11      in the bed that they make. And I think that Mr. Brass, who has not been sentenced, 
       should have the benefit of going to trial. And, Mr. Brass, should you be convicted, 
12      I don’t want you crying to me. I don’t want you crying to me if you get convicted 
       of murder that you could have had 12 years. Oh, Judge, oh, Judge, I don’t want to 
13      go to prison for life because I could have had 12 years. You have to understand 
       that. You’re making the decision. It’s your decision. Nobody else can make that 
14      decision for you, but at the end of the line if you get convicted, I don’t want you 
       crying to me.                                                        
15                                                                           
16  ECF No. 89-2 at 6. Brass’s trial counsel explained that he met with Brass “informing him of the 
17  good points and bad points about withdrawing his plea,” including “discuss[ing] the potential 
18  sentencing range if he is ultimately found guilt.” Id. at 6-7. Brass’s trial counsel informed the 
19  state district court that “Brass still . . . want[ed] to go forward with th[e] motion.” Id. at 7. 
20      A post-conviction evidentiary hearing was held four years later. See ECF No. 39. Brass 
21  testified at that hearing that he entered his guilty plea knowingly, voluntarily, and intelligently. 
22  Id. at 33-34. However, Brass did not understand the grounds necessary to later withdraw his 
23  guilty plea. Id. at 34. In response to cross-examination by the State, Brass indicated that he 
1  probably learned of his co-defendants’ sentences after pleading guilty but before he withdrew 
2  his guilty plea. Id. at 36.                                              
3      Brass’s original counsel, who represented him during the plea process, testified at the 
4  post-conviction evidentiary hearing that “there were several meetings [that he] had with Mr. 
5  Brass prior to his entry of the plea and then subsequent to his entry of the plea.” Id. at 23. 

6  Brass’s trial counsel elaborated that he “was pleased when [Brass accepted the plea], since it 
7  did limit his exposures and since the plea implicated both the murder case in which [Brass’s 
8  trial counsel] represented him and then an unrelated murder.” Id. at 27. Brass’s counsel had “no 
9  reason to think [Brass’s guilty plea] was not” legally entered; however, he later filed a motion 
10  to withdraw the guilty plea. Id. at 25-26. Brass’s counsel explained that Brass filed “a Pro Per 
11  motion” to withdraw his guilty plea and that the state district court “requested that [he] file a 
12  brief on [Brass’s] behalf regarding that particular issue.” Id. at 24. Brass’s counsel testified that 
13  it was Brass’s desire to have his guilty plea withdrawn. Id. at 29.      
14      Brass’s second counsel, who represented him during the trial and the appeal, testified 

15  that he was surprised that the state district court “let [Brass] withdraw [his guilty] plea under 
16  th[e] circumstances.” Id. at 15. He also testified about not raising an issue about the state 
17  district court’s granting of the motion in Brass’s direct appeal:        
18      The only thing I can think of is that I would’ve thought it would be better for post-
       conviction relief, because I didn’t have the record necessarily as to why, you know, 
19      as to why it would’ve been done. But other than that, I don’t know why, ‘cause as 
       I sit here now, perhaps we would’ve had the record well enough, but I just didn’t 
20      think the Supreme Court would be interested in that issue.           

21  Id.                                                                      
22      The Nevada Supreme Court reasonably determined that Brass failed to demonstrate that 
23  his appellate counsel was deficient. Strickland, 466 U.S. at 688. Pursuant to Nevada law, “[a] 
1  district court may, in its discretion, grant a defendant’s motion to withdraw a guilty plea for any 
2  substantial reason if it is fair and just.” Wood v. State, 114 Nev. 468, 475, 958 P.2d 91, 95 
3  (1998) (internal quotation marks omitted). Because the state district court had discretion to 
4  grant Brass’s motion to withdraw his guilty plea, Brass’s appellate counsel’s statement that he 
5  “just didn’t think the Supreme Court would be interested in th[e] issue,” ECF No. 39 at 15, 

6  appears to be accurate. Indeed, demonstrating an abuse of discretion is difficult, and in this 
7  situation, it is somewhat nonsensical to argue that a request should be granted and then later 
8  argue that the request was a mistake and should not have been granted. Accordingly, given the 
9  discretionary nature of the underlying claim, Brass fails to demonstrate that his appellate 
10  “counsel unreasonably failed to discover [this] nonfrivolous issue[ ].” Smith, 528 U.S. at 285; 
11  see also Jones v. Barnes, 463 U.S. 745, 753 (1983) (“A brief that raises every colorable issue 
12  runs the risk of burying good arguments.”). Because the Nevada Supreme Court reasonably 
13  denied this claim, Brass is denied federal habeas relief for Ground 7(c). 
14  H.  Ground 8                                                             

15      In Ground 8, Brass alleges that his federal constitutional rights were violated when his 
16  trial counsel erroneously allowed him to withdraw his guilty plea. ECF No. 24 at 41. Brass 
17  raised this claim in his second state habeas petition. See ECF No. 73-1 at 20. The Nevada 
18  Supreme Court determined that Brass’s second state habeas petition was procedurally barred as 
19  untimely and successive. ECF No. 73-5. Thus, this court previously determined that “in order 
20  for [Brass] to proceed on his claim in Ground Eight, he must show cause and prejudice for the 
21  default.” ECF No. 84 at 10. Brass argued that he can establish cause based on Martinez v. Ryan, 
22  566 U.S. 1 (2012) because his post-conviction counsel rendered ineffective assistance by 
23  failing to raise this claim in his initial state court habeas proceedings. Id.   
1      To demonstrate cause for a procedural default, the petitioner must “show that some 
2  objective factor external to the defense impeded” his efforts to comply with the state procedural 
3  rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also McCleskey v. Zant, 499 U.S. 467, 
4  497 (1991) (“For cause to exist, the external impediment . . . must have prevented [the] petitioner 
5  from raising the claim.”); White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (“To establish 

6  prejudice resulting from a procedural default, a habeas petitioner bears ‘the burden of showing 
7  not merely that the errors [complained of] constituted a possibility of prejudice, but that they 
8  worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of 
9  constitutional dimension.” (emphases in original), citing United States v. Frady, 456 U.S. 152, 
10  170 (1982)). In Martinez, the Supreme Court ruled that ineffective assistance of post-conviction 
11  counsel may serve as cause to overcome the procedural default of a claim of ineffective 
12  assistance of trial counsel. 566 U.S. 1 (2012). In Martinez, the Supreme Court noted that it had 
13  previously held, in Coleman, that “an attorney’s negligence in a postconviction proceeding does 
14  not establish cause” to excuse a procedural default. Id. at 1319. The Martinez Court, however, 

15  “qualif[ied] Coleman by recognizing a narrow exception: [i]nadequate assistance of counsel at 
16  initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a 
17  claim of ineffective assistance at trial.” Id. at 1315. The Court described “initial- review 
18  collateral proceedings” as “collateral proceedings which provide the first occasion to raise a 
19  claim of ineffective assistance of trial.” Id. Because the Martinez analysis is intertwined with the 
20  underlying merits of this ground, this court deferred ruling on this issue until the merits of this 
21  ground were briefed by the parties. ECF No. 84 at 10.                    
22      The Strickland “two-part standard” identified in Ground 6 “appli[es] to ineffective-
23  assistance claims arising out of the plea process.” Hill v. Lockhart, 474 U.S. 52, 57 (1985). As 
1  was detailed in Ground 7(c), Brass’s trial counsel explained that he met with Brass several 
2  times before Brass withdrew his guilty plea in order to discuss the consequences of doing so, 
3  including discussing the potential sentence Brass may face if he were to be found guilty by the 
4  jury. ECF No. 39 at 23; ECF No. 89-2 at 6-7. Even after these discussions, Brass decided to 
5  still go forward with the motion. ECF No. 89-2 at 7. Additionally, Brass was the one who 

6  originally moved in proper person to withdraw his plea. ECF No. 39 at 24. Brass’s trial counsel 
7  only thereafter filed a brief on Brass’s behalf at the request of the state district court. Id. Based 
8  on these facts, it cannot be concluded that Brass’s trial counsel was deficient. Strickland, 466 
9  U.S. at 688; Hill, 474 U.S. at 57. In fact, contrary to Brass’s assertions, the evidence 
10  demonstrates that Brass’s trial counsel did not want Brass to withdraw his guilty plea. Rather, 
11  Brass’s trial counsel was pleased with Brass’s plea deal, see ECF No. 39 at 27, and after Brass 
12  moved for the withdrawal of his plea, Brass’s trial counsel discussed the consequences of this 
13  decision with Brass on several occasions. Accordingly, it was Brass’s idea and decision to 
14  withdraw his guilty plea, not his trial counsel’s. This conclusion is supported by the fact that 

15  the state district court even told Brass that withdrawing his plea was his decision and warned 
16  him that he if was found guilty, he would face a substantially greater sentence. ECF No. 89-2 at 
17  6.                                                                       
18      Because Brass has not shown that his trial counsel was deficient, Ground 8 is not 
19  substantial. Therefore, Brass has not shown that his post-conviction counsel was ineffective for 
20  failing to raise this ground. And because Brass’s post-conviction counsel was not ineffective, 
21                                                                           
22                                                                           
23                                                                           
1  there is no cause for Brass’s procedural default. See Martinez, 566 U.S. at 9. Thus, Ground 8 
2  will be denied because it is procedurally defaulted.1                    
3  I.  Ground 10                                                            
4      In Ground 10, Brass alleges that he is entitled to relief because of the cumulative effect of 
5  the errors raised in his petition. ECF No. 24 at 45. In Brass’s appeal of the denial of his state 

6  habeas petition, the Nevada Supreme Court held: “appellant claimed that cumulative error 
7  warranted reversal of his conviction. As appellant failed to demonstrate any error, he failed to 
8  demonstrate any cumulative effect of error would amount to ineffective assistance of counsel.” 
9  ECF No. 40-2 at 5. This ruling was reasonable.                           
10      Under Ninth Circuit precedent, “although individual errors may not rise to the level of a 
11  constitutional violation, a collection of errors might violate a defendant’s constitutional rights.” 
12  Davis v. Woodford, 384 F.3d 628, 654 (9th Cir. 2004). “[C]umulative error warrants habeas 
13  relief only where the errors have ‘so infected the trial with unfairness as to make the resulting 
14  conviction a denial of due process.’” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) 

15  (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Here, Brass failed to identify 
16  any errors. Thus, Brass is denied federal habeas relief for Ground 10.2  
17                                                                           

       1 Brass also argued that he can demonstrate cause for his procedural default because this 
18                                                                           
  claim was not available until after he filed his first state habeas petition due to the fact that it was 
  based on subsequent United States Supreme Court decisions, Lafler v. Cooper, 566 U.S. 156 
19                                                                           
  (2012) and Missouri v. Frye, 566 U.S. 134 (2012), which established the right to counsel during 
  plea negotiations. ECF No. 78 at 12. This argument lacks merit. The United States Supreme 
20                                                                           
  Court determined that a defendant has the right to counsel during the plea process in 1985. See 
  Hill v. Lockhart, 474 U.S. 52, 57 (1985). Further, Brass’s contention deals with the withdrawal 
21                                                                           
  of his guilty plea, not plea negotiations specifically.                   
22      2 Brass requested that this court “[c]onduct a hearing so proof may be offered to support 
  the allegations in [his] Amended Petition” and grant him “the authority to obtain subpoenas for 
23  witnesses and documents, conduct depositions, and conduct any other discovery reasonably 
  necessary to prove the facts alleged in [his] petition.” ECF No. 24 at 46. Brass fails to explain 
  what evidence would be presented at an evidentiary hearing or through discovery. Additionally, 
1  ///                                                                      
2  ///                                                                      
3                        Certificate of Appealability                       
4      This is a final order adverse to Brass. As such, Rule 11 of the Rules Governing Section 
5  2254 Cases requires this court to issue or deny a certificate of appealability (COA). Therefore, 

6  this court has sua sponte evaluated the claims within the petition for suitability for the issuance 
7  of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 
8  Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a 
9  substantial showing of the denial of a constitutional right.” With respect to claims rejected on the 
10  merits, a petitioner “must demonstrate that reasonable jurists would find the district court’s 
11  assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 
12  484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a 
13  COA will issue only if reasonable jurists could debate (1) whether the petition states a valid 
14  claim of the denial of a constitutional right and (2) whether the court’s procedural ruling was 

15  correct. Id. Applying these standards, this court finds that a certificate of appealability is 
16  unwarranted.                                                             
17                             Conclusion                                    
18      IT IS HEREBY ORDERED that the First Amended Petition for Writ of Habeas Corpus 
19  by a Person in State Custody Pursuant to 28 U.S.C. § 2254 (ECF No. 24) is DENIED. 
20      IT IS FURTHER ORDERED that Petitioner is denied a certificate of appealability.  
21                                                                           
  this court has already determined that Brass is not entitled to relief, and neither further factual 
22  development nor any evidence that may be proffered at an evidentiary hearing or through 
  discovery would affect this court’s reasons for denying relief. Accordingly, Brass’s request for 
23  an evidentiary hearing is denied.                                        
1      IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter judgment 
2  accordingly.                                                             
3      Dated:  May 1, 2020                                                  
4                                          _________________________________ 
                                       Gloria M. Navarro, Judge             
5                                      United States District Court         

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