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[[COURTLISTENER_SUBOPINION {"id":"11084032","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
1
2
3
4
5
6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA
8 CLEMON HUDSON, Case No.: 2:22-cv-01377-GMN-BNW
9 Petitioner Order Denying Petition, Denying
Certificate of Appealability and
10 v. Closing Case
11 WILLIAM HUTCHING,1 et al.,
12 Respondents.
13 In his
28 U.S.C. § 2254
Habeas Corpus Petition, Clemon Hudson challenges his
14 burglary, battery, and attempted murder convictions, including arguing that his trial
15 should have been severed and that the prosecutors engaged in misconduct. (ECF No.
16 5.) The Court has considered the merits of the Petition, and it is denied.
17
I. Background
18
19 In April 2018, a Nevada (Clark County) jury convicted Hudson of two counts of
20 Attempted Murder with Deadly Weapon, Conspiracy to Commit Burglary, Attempted
21
22 1 According to the Nevada Department of Corrections inmate locator page, Hudson is
incarcerated at Southern Desert Correctional Center. The departmentâs website reflects Ronald
23 Oliver is the warden for that facility. At the end of this order, the Court directs the Clerk to
substitute Ronald Oliver for prior respondent William Hutching, under, inter alia, Rule 25(d) of
the Federal Rules of Civil Procedure.
1 Burglary while in Possession of a Firearm or Deadly Weapon, and Battery with Use of a
2 Deadly Weapon Resulting in Substantial Bodily Harm. (Exh. 54.)2 Hudson and Steven
3 Turner were convicted of trying to break into a Las Vegas house to steal marijuana and
4 shooting at responding police officers, seriously injuring one. (See ECF No. 22 at 2.)
5 The state district court sentenced Hudson to an aggregate term of 168 to 480 months.
6 (Exh. 58.) Judgment of conviction was entered on July 2, 2018. (Exh. 59.) Hudsonâs
7 trial counsel did not file an appeal. Hudson filed a state postconviction petition through
8 new counsel that challenged, in part, his trial counselâs failure to file an appeal. (Exh.
9 61.) After an evidentiary hearing, the district court found that Hudson was deprived of
10 his right to a direct appeal and granted him relief on that claim. (ECF Nos. 71, 72.) The
11 court denied the remaining claims. (ECF No. 72.) The Nevada Court of Appeals
12 affirmed the denial of his state postconviction petition in June 2022. (Exh. 90.)
13 Hudson dispatched his federal Petition for mailing about August, 2022. (ECF No. 5.)
14 He raises six grounds:
15 Ground 1: The district court abused its discretion by not granting
Hudsonâs motion to sever defendants.
16
Ground 2: The prosecutor committed misconduct at trial such that
17 the conviction must be reversed.
18 Ground 3: The district court erred by giving improper jury
instructions.
19
Ground 4: The district court erred by allowing uniformed officers to
20 pack the courtroom.
21 Ground 5: Cumulative error in trial proceedings.
22
23
2 Exhibits referenced in this Order are found at ECF Nos. 18-19.
1 Ground 6: Hudsonâs trial counsel was ineffective for failing to object
to the jury instruction on flight.
2
(ECF Nos. 5, 1-2.)
3
Respondents have answered the Petition. (ECF No. 22.) Hudson did not file a
4
reply or respond to the answer in any way.
5
6 II. Trial Testimony
7
The Court summarizes trial evidence and related state-court record material and
8
proceedings as a backdrop to its consideration of the issues presented in the case.3
9
Eric Clarkson testified that he and Steven Turner had been friends and would smoke
10
marijuana frequently at Clarksonâs house. (Exh. 44 at 58-91; Exh. 45 at 65-69.) At
11
some point Clarkson and Turner had stopped communicating; they hadnât been in touch
12
for almost a year before the incident. Clarksonâs best friend, Willoughby Potter de
13
Grimaldi also lived at the house. On the night in question, September 4, 2015, Clarkson
14
was getting ready to go to bed at about 3:30 in the morning. A few minutes after he
15
turned off his bedroom light, he heard a sound that he recognized as a chair on his patio
16
being moved across the bricks. He looked out his window and saw a young, black man
17
on the patio. He grabbed his phone, woke up his roommate, and called 911 to report
18
that someone was in his backyard. Grimaldi went to the front window and saw
19
someone outside the front door. Two police officers arrived, Robertson and Grego-
20
21
3 The Court makes no credibility findings or other factual findings regarding the truth or falsity of
22 evidence or statements of fact in the state court record. The Court summarizes the same solely
as background to the issues presented in this case, and it does not summarize all such material.
23 No assertion of fact made in describing statements, testimony, or other evidence in the state
court constitutes a finding by this Court. Any absence of mention of a specific piece of evidence
or category of evidence does not signify the Court overlooked it in considering Hudsonâs claims.
1 Smith; Clarkson let them in the front door. He and Grimaldi showed them that someone
2 was in the backyard and how to turn on the back lights and open the back door. When
3 Officer Robertson opened the back door, Clarkson saw two bullets fly across the living
4 room very close to Clarkson from outside the back door. The two roommates hid in a
5 bedroom while shots were exchanged. At some point later he saw Turnerâs picture on
6 the news; he contacted detectives and said that he knew that man.
7 Grimaldi testified that on the night in question he was just falling asleep when
8 Clarkson woke him up. (Exh. 44 at 91-128.) He went to a back window and saw a black
9 man wearing a billed cap cocking what looked like a shotgun. Someone started
10 banging on the front door; he peeked out the window and saw a different individual at
11 the front door. The person had an afro, was about 6â1â and was shirtless with black
12 basketball shorts. Grimaldi looked out a back window and thought he saw a third
13 individual. He thought he saw someone running away from the house just before police
14 arrived. The moment police opened the back door, shots were fired into the house.
15 Grimaldi said he was familiar with the difference between different bullets, and one
16 bullet came from a shotgun and one from a âstraight-shootingâ firearm.
17 Las Vegas Metropolitan Police Department (âLVMPDâ) Officer Malik Grego-Smith
18 testified that he and Officer Jeremy Robertson responded to a call about a prowler.
19 (Exh. 46 at 56-100.) When they approached the house, Smith heard someone in the
20 backyard. The residents opened the front door, and the officers went in the house
21 toward the backyard. Robertson opened the back door, Smith started to take a step
22 outside the door when two shots were fired from a high-powered rifle. Smith took a step
23 back behind cover and returned fire; he glimpsed a back man, shirtless, in purple
1 basketball shorts. He also heard Robertson fall to the ground behind him. Smith
2 reported officer down. Robertson reported over the radio that he had seen two
3 suspects. Later when the K-9 unit apprehended Hudson, Smith kept watch to see that
4 no one else was in the backyard.
5 Officer Jeremy Robertson testified that he and Smith responded to the prowler
6 call. (Exh. 46 at 102-135.) When they went to the back of the house, they couldnât see
7 anyone in the backyard from the windows. The officers decided to clear the backyard.
8 He holstered his gun to open the backdoor so that Smith could go out the door.
9 Robertson was immediately shot in the leg from the backyard. Smith took a knee in
10 front of Robertson to protect him, radioed officer down, and was firing into the backyard.
11 Robertson knew that he told Smith there were two suspects, though he does not
12 remember anything that he saw. Responding officers pulled Robertson from the house
13 and he went by ambulance to the hospital. His femur was shattered, surgeons installed
14 a titanium rod, and his gluteus muscles and hip flexor muscle had to be reattached.
15 LVMPD K-9 Sergeant Joshua Bitsko testified that he is the handler for police dog
16 Loki. (Exh. 45 at 127-152.) He responded to the scene and organized his team to
17 apprehend the suspect who was still in the backyard. They moved through the house
18 toward the backyard; it was very dark, and Bitsko could not see anyone in the backyard.
19 An officer gave verbal commands to the suspect to put up his hands and crawl towards
20 the house. The suspect responded but the officers couldnât understand what he said.
21 An air unit overhead communicated that the suspect was down on the ground, next to
22 him was a long gun. Bitsko deployed Loki, who bit the suspect on the wrist and began
23
1 to pull him toward the house. Bitsko could then see that the suspect didnât have a gun
2 in his hands, so the team moved in to arrest the individual, Hudson.
3 Fingerprints recovered from the shotgun were later identified as Hudsonâs. (Exh.
4 47 at 11-29.) A DNA profile obtained from a beanie that was in the backyard as well as
5 other DNA found at the scene was consistent with Hudson. (Exh. 47 at 29-53.) Turner
6 was excluded as a possible contributor.
7 LVMPD detective Jeremy Vance testified that he apprehended Turner in a
8 neighborhood about half a mile away. (Exh. 45 at 153-165.) Turner initially gave him a
9 fictitious name. When the officers asked Turner about his bloody leg, he said he hurt it
10 hopping over a friendâs fence. From Vanceâs experience, it looked like a gun shot
11 wound. Turner was arrested and taken to the hospital for treatment for a gun shot
12 wound. (Exh. 50 at 8-9.) Surveillance video recovered by officers showed Turner
13 crossing yards, parking lots, and fences on foot immediately after the incident.
14
III. AEDPA Legal Standard and Analysis
15
16
28 U.S.C. § 2254
(d), a provision of the Antiterrorism and Effective Death Penalty
17 Act (âAEDPAâ), provides the legal standards for this Courtâs consideration of the Petition
18 in this case:
An application for a writ of habeas corpus on behalf of a person in
19
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
20 proceedings unless the adjudication of the claim â
21 (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
22 determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
23
determination of the facts in light of the evidence presented in the State
court proceeding.
1 The AEDPA âmodified a federal habeas courtâs role in reviewing state prisoner
2 applications in order to prevent federal habeas âretrialsâ and to ensure that state-court
3 convictions are given effect to the extent possible under law.â Bell v. Cone,
535 U.S.
4
685, 693-694 (2002). This Courtâs ability to grant a writ is limited to cases where âthere
5 is no possibility fair-minded jurists could disagree that the state courtâs decision conflicts
6 with [Supreme Court] precedents.â Harrington v. Richter,
562 U.S. 86, 102
(2011). The
7 Supreme Court has emphasized âthat even a strong case for relief does not mean the
8 state courtâs contrary conclusion was unreasonable.â
Id.
(citing Lockyer v. Andrade, 538
9 U.S. 63
, 75 (2003)); see also Cullen v. Pinholster,
563 U.S. 170, 181
(2011) (describing
10 the AEDPA standard as âa difficult to meet and highly deferential standard for evaluating
11 state-court rulings, which demands that state-court decisions be given the benefit of the
12 doubtâ) (internal quotation marks and citations omitted).
13 A state court decision is contrary to clearly established Supreme Court precedent,
14 within the meaning of
28 U.S.C. § 2254
, âif the state court applies a rule that contradicts
15 the governing law set forth in [the Supreme Courtâs] casesâ or âif the state court
16 confronts a set of facts that are materially indistinguishable from a decision of [the
17 Supreme Court] and nevertheless arrives at a result different from [the Supreme
18 Courtâs] precedent.â Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor,
529 U.S. 362
,
19 405-06 (2000), and citing Bell, 535 U.S. at 694.
20 A state court decision is an unreasonable application of clearly established Supreme
21 Court precedent, within the meaning of
28 U.S.C. § 2254
(d), âif the state court identifies
22 the correct governing legal principle from [the Supreme Courtâs] decisions but
23 unreasonably applies that principle to the facts of the prisonerâs case.â Lockyer, 538
1 U.S. at 74 (quoting Williams,
529 U.S. at 413
). The âunreasonable applicationâ clause
2 requires the state court decision to be more than incorrect or erroneous; the state
3 courtâs application of clearly established law must be objectively unreasonable.
Id.
4 (quoting Williams,
529 U.S. at 409
).
5 To the extent that the state courtâs factual findings are challenged, the
6 âunreasonable determination of factâ clause of § 2254(d)(2) controls on federal habeas
7 review. E.g., Lambert v. Blodgett,
393 F.3d 943, 972
(9th Cir. 2004). This clause
8 requires that the federal courts âmust be particularly deferentialâ to state court factual
9 determinations.
Id.
The governing standard is not satisfied by a showing merely that the
10 state court finding was âclearly erroneous.â
393 F.3d at 973
. Rather, AEDPA requires
11 substantially more deference:
12 .... [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that we
13 would reverse in similar circumstances if this were an appeal from a
district court decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review, could not
14 reasonably conclude that the finding is supported by the record.
15 Taylor v. Maddox,
366 F.3d 992, 1000
(9th Cir. 2004); see also Lambert, 393
16 F.3d at 972.
17 Under
28 U.S.C. § 2254
(e)(1), state court factual findings are presumed to be
18 correct unless rebutted by clear and convincing evidence. The petitioner bears the
19 burden of proving by a preponderance of the evidence that he is entitled to habeas
20 relief. Cullen,
563 U.S. at 181
.
21 Ground 1
22 Hudson alleges that the district court abused its discretion by not granting his
23 motion to sever defendants. (ECF No. 5-1 at 8-17.) He argues that there was not a way
to redact Turnerâs statements enough to not implicate Hudson, and that Turnerâs
1 statements constituted a Bruton violation.4 He asserts that he was deprived of his Sixth
2 Amendment right to confrontation because Turnerâs statements were admitted and
3 Turner didnât testify, so Hudson couldnât cross examine him. He also argues that his
4 defense was antagonistic to Turnerâs and that Turnerâs statement implicated Hudson for
5 the attempted murder.
6 A district court should only grant a severance âif there is a serious risk that a joint
7 trial would compromise a specific trial right of one of the defendants, or prevent the jury
8 from making a reliable judgment about guilt or innocence.â Zafiro v. United States, 506
9 U.S. 534, 539
(1993). Consolidation rests in the sound discretion of the state trial
10 judge, and simultaneous trial of multiple offenses must actually render the state trial
11 fundamentally unfair and therefore violative of due process before federal relief is
12 available. Featherstone v. Estelle,
948 F.2d 1497, 1503
(9th Cir. 1991). Policy benefits
13 of consolidated prosecutions also serve to âconserve state funds, diminish
14 inconvenience to witnesses and public authorities, and avoid delays in bringing those
15 accused of crime to trial.â Bruton v. United States,
391 U.S. 123, 134
(1968).
16 Here, the officers who testified about Hudson and Turnerâs statements to them
17 were cautioned not to refer to the co-defendant when testifying about the otherâs
18 statements. (Exh. 47 at 55-58.) They also had the redacted statements to refer to
19 during their testimony. The State did not play Hudsonâs or Turnerâs statement to the
20 jury because they were heavily redacted; the State had removed specific references by
21
22
4 See Bruton v. United States,
391 U.S. 123
(1968) (holding that a defendant is deprived of his
23 rights under the Confrontation Clause when his non-testifying codefendantâs confession naming
him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to
consider that confession only against the codefendant).
1 each co-defendant to the other. Craig Jex, a LVMPD Force Investigation Team (âFITâ)
2 detective, testified that FIT investigates officer-involved shootings and that he
3 interviewed Hudson after his arrest. (Exh. 47 at 58-95.) Jex testified that Hudson told
4 him that he and another individual went to the house that night to steal marijuana. They
5 drove to the house in Hudsonâs motherâs Toyota Camry.5 The person that Hudson went
6 to the house with knew the homeowner and had said that it would be easy to steal
7 marijuana from the house. They had expected the door to be unlocked and the house
8 to be empty, but the doors were locked. They knocked on the front door; it appeared no
9 one was home. Hudson was carrying a shotgun and said that the plan was to break the
10 back window. He said he had been wearing a long sleeve camouflage shirt and a
11 beanie. Hudson said that when the police opened fire on them, he may have fired the
12 shotgun once toward the bottom of the back window, then he fell backwards over a
13 small wall in the backyard. He stayed behind the wall during the remainder of the
14 shooting. He told Jex that he didnât initially know the shooters were police officers. He
15 thought the officers started shooting first and were shooting through the door. Hudson
16 said this was the first âheistâ heâd ever been involved in.
17 LVMPD officer Eduardo Pazos testified that he interviewed Steven Turner. (Exh.
18 47 at 95-125.) When officers approached Turner, who was on foot several blocks from
19 the crime scene, he initially told the officer that his name was Devonte Turner. Turner
20 told Pazos that someone had called him to go for a ride. When Turner got in the car, he
21 saw two guns in the back. Turner specifically said that it was just he and one other
22
23
5 A detective testified that the Toyota Camry registered to Karen Hudson was parked near the
house and officers found with Turnerâs two dogs and cell phone inside. (Exh. 48 at 26-27.)
1 individual; no one else was in the car. They drove to the house of someone Turner
2 knew who sold marijuana. When they got to the house, the other person hopped over
3 the wall first into the backyard, then Turner hopped over the wall. He said someone
4 starting shooting from the house almost immediately; he said he hopped back over the
5 wall and fled. Turner maintained that he did not shoot at anyone.
6 The Nevada Court of Appeals rejected Hudsonâs claims that his confrontation
7 rights were violated this claim:
8 ⌠Turnerâs statements did not facially incriminate Hudson. Rather,
Turnerâs statements were only incriminating when linked to other evidence
9 presented at trial. Hudsonâs DNA and fingerprints were found on the
baseball cap and shotgun recovered from Clarksonâs backyard. His DNA
10 was also found on Clarksonâs patio. Hudson himself confessed to going to
Clarksonâs house to steal marijuana, carrying a shotgun and a handgun,
11 and firing the shotgun at least once. As such, there was no Bruton
violation, and any prejudice against Hudson caused by admitting Turnerâs
12 statements was minimal. Further, this prejudice was likely cured by the
limiting instructions the district court gave alongside each admitted
13 statement. âŚ
14 âŚHudsonâs and Turnerâs defenses were not âmutually exclusiveâ so
as to require severance. At closing arguments, Turner argued the State
15 had failed to prove that he was on Clarksonâs patio or that he had a gun.
He further argued the State could not prove there were only two people
16 involved but rather that âthere were likely four people involved.â On the
other hand, even though Hudson did not testify, he argued that he merely
17 intended to go to an empty house to steal some marijuana. Hudson
continued that once the gunfire started, he froze in fear because he did
18 not âhave murder on the brainâ and did not âsign up for a gun fight.â He
argued it was not his intent to kill anyone and that there was âjust no
19 motive to do so.â
20 These defenses were not mutually exclusive because the jury could
have accepted either while still acquitting the other defendant. In other
21 words, the jury could have accepted both defenses and acquitted both
defendants. Indeed, had the jury accepted Turnerâs argument that more
22 individuals were involved, it would arguably have been more likely to
acquit Hudson as well. On appeal, Hudson acknowledges this case does
23 not present âa typical âwhodunnitâ where two defendants pointed fingers at
each other and tried to escape criminal liability altogether.â Rather, both
1 defendants admitted they were at Clarksonâs house, near the patio, at the
time of the crimes, and that they had arrived there together. Each then
2 pursued separate defenses to avoid criminal liability for the attempted
murder charges. The district court therefore did not abuse its discretion in
3 denying Hudsonâs motion to sever based on either Bruton or the
codefendantsâ separate defenses.
4
Finally, we consider Hudsonâs own statements to determine
5 whether a Bruton violation, if any, was harmless. Here, Hudson admitted
to going to Clarksonâs home to steal marijuana. He admitted to carrying
6 the shotgun and a small handgun. And he admitted to firing the shotgun at
least once âat the bottom of the windowâ of the home moments after the
7 sliding backdoor was opened. These statements are more incriminating
than Turnerâs statements that âsomeone came to pick him up,â and âthe
8 person he was with hopped over the wall first.â Therefore, any Bruton error
was harmless considering Hudsonâs own confession.
9
(Exh. 90 at 8-10.)
10
Hudson argues that Turnerâs statement implicates Hudson in the attempted
11
murder and that he would not have been found guilty of attempted murder without
12
Turnerâs statement. But sufficient evidence supported Hudsonâs conviction. In his own
13
statement he admitted to going to the house to steal drugs and that he fired the shotgun
14
toward the bottom of a back window. He was apprehended at the scene, with a
15
shotgun close by him. His DNA was found at the scene and on the shotgun. The Court
16
is unpersuaded that a Bruton violation occurred. And any error was harmless. Hudson
17
cannot demonstrate that the Nevada Court of Appealsâ decision on federal ground 1
18
was contrary to, or involved an unreasonable application of, clearly established U.S.
19
Supreme Court law, or was based on an unreasonable determination of the facts in light
20
of the evidence presented in the state court proceeding.
28 U.S.C. § 2254
(d). Habeas
21
relief on ground 1 is, therefore, denied.
22
23
1 Ground 2
2 Hudson contends that the Stateâs prosecutorial misconduct during closing
3 arguments warrants the reversal of his conviction. Prosecutorial misconduct may ââso
4 infec[t] the trial with unfairness as to make the resulting conviction a denial of due
5 process.ââ Greer v. Miller,
483 U.S. 756, 765
(1987), quoting Donnelly v. DeChristoforo,
6
416 U.S. 637, 643
(1974). The court reviews under the ânarrowâ standard of a due
7 process violation, ânot the broad exercise of supervisory power.â Darden v. Wainwright,
8
477 U.S. 168, 181
(1986). A petitioner cannot prevail on such a claim by merely
9 showing âthat the prosecutorsâ remarks were undesirable or even universally
10 condemned.â
Id.
To constitute a due process violation, the prosecutorial misconduct
11 must be ââof sufficient significance to result in the denial of the defendantâs right to a fair
12 trial.ââ Greer,
483 U.S. at 765
, quoting United States v. Bagley,
473 U.S. 667
, 676
13 (1985). âProsecutorial misconduct which rises to the level of a due process violation
14 may provide the grounds for granting a habeas petition only if that misconduct is
15 deemed prejudicial under the âharmless errorâ test.â Shaw v. Terhune,
380 F.3d 473
,
16 478 (9th Cir. 2004). An error is harmless unless it had a âsubstantial and injurious effect
17 or influence in determining the juryâs verdict.â Brecht v. Abramson,
507 U.S. 619
, 623
18 (1993).
19 During closing argument, the prosecutor stated: âIf I were to tell you [about the
20 incident] over a glass of whiskey, you would look at me and go, Good. Iâm glad you
21 caught the two guys who shot the cops.â (Exh. 50 at 112.) He also said, âNow, they
22 could have been charged with four counts of attempt murder based on the transferred
23 intent instruction. They could have beenâwe could have charged them with four
1 counts.â (Id. at 122.) The trial court sustained the defense objection to the second
2 statement.
3 The Nevada Court of Appeals agreed that the prosecutor committed misconduct
4 with both statements but held that neither comment so infected the trial with unfairness
5 to warrant reversal:
6 Here, the prosecutor committed misconduct by inviting the jury to
consider issues not in evidence when he said the State could have
7 charged Hudson with additional crimes, thereby implying the prosecutor
believed Hudson to be guilty of additional, uncharged crimes. See
8 Pantano v. State,
122 Nev. 782, 793
,
138 P.3d 477
. 484 (2006) (holding
that it is âalways improperâ for the prosecutor to give a personal opinion
9 regarding a defendantâs guilt); see also Valdez, 124 Nev. at 1192, 196
P.3d at 478 (recognizing that the prosecutor must ânot inject [its] personal
10 opinion or beliefsâ into the trial); Turner v. State,
136 Nev. 545
, 556,
473
P.3d 438, 449
(2020) (concluding it was misconduct for the prosecutor to
11 reference the possibility of additional, uncharged crimes). However, the
district court sustained Hudsonâs objection to this comment and instructed
12 the jury to disregard it. See Rose v. State,
123 Nev. 194, 209
,
163 P.3d
408, 418
(2007) (concluding the district courtâs admonishment was
13 sufficient to cure any prejudice caused by a prosecutorâs improper
comment); Summers v. State,
122 Nev. 1326, 1333
,
148 P.3d 778
, 783
14 (2006) (â[T]his court generally presumes that juries follow district court
orders and instructions.â). Further, the evidenceâincluding Hudsonâs
15 confession to firing the shotgun at the house moments after the sliding
backdoor was openedâstrongly inculpated Hudson. See Valdez, 124
16 Nev. at 1195, 196 P.3d at 480 (âThis error . . . did not infect the trial with
unfairness so as to affect the verdict and deny [appellant] his constitutional
17 right to a fair trial.â). Therefore, this misconduct does not warrant reversal
of Hudsonâs conviction.
18
The prosecutor also committed misconduct by inviting the jurors to
19 feel âgoodâ about convicting a defendant who shot a police officer. See
Pantano,
122 Nev. at 793
,
138 P.3d at 484
(holding that it is improper to
20 âappeal[ ] to juror sympathies by diverting their attention from evidence
relevant to the elements necessary to sustain a convictionâ); see also
21 Turner, 136 Nev. at 556,
473 P.3d at 449
(concluding that it was
misconduct to invite the jury to feel good about convicting defendants who
22 shoot police officers). However, Hudson did not object to this comment,
and we therefore review it for plain error. See Valdez, 124 Nev. at 1190,
23 196 P.3d at 477. Under plain error review, Hudson has not demonstrated
his substantial rights were affected by the prosecutor's comment. See
1 Jeremias, 134 Nev. at 50, 412 P.3d at 48. Although improper, two fleeting
comments made near the end of a ten-day trial do not warrant the reversal
2 of a conviction that was otherwise supported by strong evidence
implicating Hudson. [FN]
3
[FN: Hudson did not object below to the prosecutorâs comment
4 stating it did not matter that Turner and Hudson might not have known
who they were shooting at so long as they attempted to kill two human
5 beings. Even assuming arguendo that the prosecutorâs statement
constituted misconduct, Hudson has not demonstrated how that statement
6 impacted his substantial rights to a fair trial. See Jeremias, 134 Nev. at 50,
412 P.3d at 48. Therefore, the alleged misconduct would not warrant
7 reversal of Hudsonâs conviction.]
8 (Exh. 90 at 17-18.)
9 The prosecutorâs statements were clearly improper. But, as discussed earlier,
10 strong evidence supported Hudsonâs conviction, including that Hudson was
11 apprehended at the scene and his DNA was found on the shotgun and Hudsonâs own
12 statement that he shot at the house when the back door was opened. The prosecutorial
13 misconduct cannot be said to have had a substantial injurious effect on the juryâs
14 decision. Hudson cannot demonstrate that the Nevada Court of Appealsâ decision on
15 federal ground 2 was contrary to, or involved an unreasonable application of, clearly
16 established U.S. Supreme Court law, or was based on an unreasonable determination
17 of the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. §
18
2254(d). Habeas relief on ground 2 is, therefore, denied.
19 Ground 3
20 Hudson asserts that the trial court erred by giving four improper jury instructions.
21 (ECF No. 5.) Issues relating to jury instructions are not cognizable in federal habeas
22 review unless they infect the entire trial and establish a due process violation. Estelle v.
23 McGuire,
502 U.S. 62, 72
(1991); Henderson v. Kibbe,
431 U.S. 145, 154
(1977); Cupp
1 v. Naughten,
414 U.S. 141, 147
(1973). Demonstrating that an erroneous instruction
2 was so prejudicial that it will support a collateral attack on the constitutional validity of a
3 state courtâs judgment requires the court to determine âwhether the ailing instruction by
4 itself so infected the entire trial that the resulting conviction violates due process,â not
5 whether the instruction is âundesirable, erroneous, or even universally condemned.â
6 Henderson,
431 U.S. at 154
(citations omitted); Estelle,
502 U.S. at 72
.
7 This Court evaluates whether there is a reasonable likelihood that the jury
8 applied the instruction in a way that violated the Constitution. Estelle,
502 U.S. at 72
.
9 That a juror âcould haveâ misinterpreted an instruction is different from the reasonable
10 likelihood that the juror did misinterpret the instruction. Tyler v. Cain,
533 U.S. 656
, 658
11 n.1 (2001).
12 In reviewing jury instructions, the court inquires as to whether the instructions as
13 a whole are misleading or inadequate to guide the juryâs deliberation. United States v.
14 Garcia-Rivera,
353 F.3d 788, 792
(9th Cir. 2003) (citation omitted). An instruction may
15 not be judged in isolation, âbut must be considered in the context of the instructions as a
16 whole and the trial record.â Estelle,
502 U.S. at 72
. And jurors are presumed to follow
17 the instructions that they are given. Weeks v. Angelone,
528 U.S. 225, 234
(2000).
18 Even if instructional error is found, the court must apply harmless error. Calderon v.
19 Coleman,
525 U.S. 141, 146
(1998) (per curiam), citing Brecht v. Abrahamson,
507 U.S.
20 619, 637-38
(1993). The question is whether the instructional error âhad a substantial
21 and injurious effect or influence in determining the juryâs verdict.â
Id.
22
23
1 Hudson argued that the court erroneously gave the jury an instruction on
2 transferred intent. (ECF No. 5-1 at 19-20.) The court gave the jury the following
3 instruction:
4 Jury Instruction No. 29 (transferred intent)
5 During an attack upon a group, a defendantâs intent to kill need not
be directed at any one individual. It is enough if the intent to kill is directed
6 at the group. The State is not required to prove that a Defendant intended
to kill a specific person in the group.
7
(Exh. 52 at 33, ECF No. 19-2.)
8
The instruction is derived from Ewell v. State,
785 P.2d 1028
(Nev. 1989);
9
Hudson asserts that Ewell is distinguishable from the facts of his case because there
10
the defendant shot at a group of officers, while Hudson only went to the home with the
11
intent to burglarize the home and steal marijuana, not the intent to kill. (Id. at 20.)
12
The appellate court held that the transferred intent instruction correctly stated
13
Nevada law:
14
. . . . Hudson argues the district court erred in giving, over his
15 objection, jury instruction number 29 because the facts of his case are
dissimilar to the facts of Ewell v. State,[FN4] from which the instruction is
16 derived. The State counters that Ewell stands for the proposition that the
prosecution is not required to prove a defendant intended to kill a specific
17 member of a group when he fired at the group. The State argues that it is
irrelevant whether the âgroupâ in this case was comprised of Officers
18 Richardson and Grego-Smith in the doorway of Clarkson's home or of the
officers in addition to Grimaldi and Clarkson. . . .
19
Here, like the jury instruction in Ewell, the jury instruction given by
20 the district court âmerely inform[ed] the jury that the state did not have to
prove that [Hudson] intended to kill a specific person in the groupâ that he
21 fired upon to be found guilty of attempted murder. See Ewell,
105 Nev. at
899
,
785 P.2d at 1029
. This accurately and fairly states Nevada law.
Id.
In
22 addition, Hudson admitted to firing the shotgun at the house. Furthermore,
Clarkson testified that he was close enough to the back door to see the
23 bullets âfly across [his] living room.â The district court relied on this
evidence in allowing the jury instruction. A âgroupâ is defined as âa number
1 of individuals assembled together or having some unifying relationship.â
See Group, Merriam-Webster's Collegiate Dictionary (11th ed. 2007).
2 Therefore, Hudson fired into a group of either the two police officers or the
two police officers plus Grimaldi and Clarkson. As such, jury instruction
3 number 29 was correct under the law and the district courtâs decision to
give the instruction was not arbitrary or capricious and therefore did not
4 constitute an abuse of discretion. See Jackson, 117 Nev. at 120, 17 P.3d
at 1000.
5
[FN4:
105 Nev. 897
,
785 P.2d 1028
(Nev. 1989)]
6
(Exh. 90 at 10-11.)
7
Respondents argue that Jury Instruction Nos. 286 and 29, when read together,
8
instruct the jury about the legal doctrine of transferred intent. Hudson does not argue
9
that it incorrectly states the law on transferred intent. Instead, Hudson argues that the
10
court should not have given the jury the instruction because the facts of his case differ
11
from the facts in Ewell. (ECF No. 5-1 at 20.) But Hudsonâs initial intent when he went to
12
the house is not the issue. The instructions instead explain that, once the intent to kill is
13
formed, the doctrine of transferred intent does not require the State to prove an intent to
14
kill a specific individual when shooting at a group. So Hudsonâs challenge to the
15
transferred intent instruction lacks merit.
16
Hudson did not object to the next three jury instructions that he challenged on
17
direct appeal. The Nevada Supreme Court thus reviewed the instructions for plain error.
18
(Exh. 90 at 12.) First, Hudson challenged the flight instruction because he did not flee
19
20
21
6 Jury Instruction No. 28:
22 If you believe that at the time of the shooting in this case a defendant intended to
kill any person, or to aid and abet his co-defendant with the deliberate intention to
23 unlawfully kill any person, it is of no legal consequence that he or his co-
defendant mistakenly injured a different person. His intent to kill transfers to the
person actually harmed.
1 the scene of the crime. (ECF No. 5-1 at 20-21.) He insists that the court should have
2 instructed the jury that the instruction only applied to Turner. The court instructed:
3 Jury Instruction No. 38 (flight)
4 The flight of a person immediately after the commission of a crime,
or after he is accused of a crime, is not sufficient in itself to establish his
5 guilt, but is a fact which, if proved, may be considered by you in light of all
other proved facts in deciding the question of his guilt or innocence. The
6 essence of flight embodies the idea of deliberately going away with
consciousness of guilt and for the purpose of avoiding apprehension or
7 prosecution. Whether or not evidence of flight shows a consciousness of
guilt and the significance to be attached to such a circumstance are
8 matters for your deliberation.
9 (Exh. 52 at 42.)
10 The Nevada Court of Appeals held that because Hudson never left the scene,
11 the jury couldnât have mistakenly applied the instruction to Hudson:
12 Hudson has not demonstrated there was any error because he
never left the scene and therefore there was no âgoing away that could
13 have been misconstrued by the jury as flight to begin with. In other words,
the district courtâs flight instruction was inapplicable to Hudson altogether.
14 Hudson has cited no legal authority, nor has he cogently argued why it
was plain error for the district court to give the flight instructionâwhich
15 applied to his codefendantâwithout a limiting instruction. In the absence
of legal authority indicating otherwise, any error on the district courtâs part
16 in giving the flight instruction was not clear under current law from a
casual inspection of the record.
17
Nevertheless, even assuming arguendo that the district court
18 committed plain error by giving the flight instruction to the jury without a
limiting instruction, Hudson has not demonstrated that any such error
19 affected his substantial rights. The testimony given at trial made clear that,
rather than flee, Hudson remained at and was apprehended at the scene.
20 Turner, on the other hand, fled the scene and was only apprehended after
a three-and-a-half-hour search. Hudson has not pointed to anything in the
21 record that might suggest the jury would mistakenly apply the flight
instruction to him. Indeed, the jury could not have done so because there
22 was no âgoing awayâ on Hudsonâs part that might have been
misinterpreted as flight. Therefore, even if the district court had committed
23 plain error in giving a flight instruction that did not apply to Hudson, without
1 a limiting instruction, such error was neither prejudicial nor did it cause a
âgrossly unfairâ outcome. See Jeremias, 134 Nev. at 51, 412 P.3d at 49.
2
(Exh. 90 at 13-14.)
3
Hudson is correct that the flight instruction clearly did not apply to him and only
4
applied to Turner. Trial testimony was clear that Hudson dropped his guns and laid
5
down on the ground, where he was arrested. Testimony also showed that officers
6
arrested Turner blocks away as he walked toward a friendâs house and that Turner
7
initially gave police a fake name. This Court agrees that there was no error, but any
8
error would be harmless. Hudson cannot show a reasonable likelihood that the jury
9
applied the instruction in a way that violated the Constitution. See Estelle,
502 U.S. at
10
72.
11
Finally, Hudson contends that instruction nos. 40 and 50 on reasonable doubt
12
and equal and exact justice were improper. (ECF No. 5-1 at 22.) His brief argument is
13
that the wording of the instructions minimized the Stateâs burden of proof and violated
14
his due process rights because the State is required to prove every element against a
15
defendant beyond a reasonable doubt.
16
The court instructed as follows:
17
Jury Instruction No. 40 (reasonable doubt)
18
The Defendant is presumed innocent unless the contrary is proved.
19 This presumption places upon the State the burden of proving beyond a
reasonable doubt every element of the crime charged and that the
20 Defendant is the person who committed the offense.
21 A reasonable doubt is one based on reason. It is not mere possible
doubt but is such a doubt as would govern or control a person in the more
22 weighty affairs of life. If the minds of the jurors, after the entire comparison
and consideration of all the evidence, are in such a condition that they can
23 say they feel an abiding conviction of the truth of the charge, there is not a
1 reasonable doubt. Doubt to be reasonable must be actual, not mere
possibility or speculation.
2
If you have a reasonable doubt as to the guilt of the Defendant, he
3 is entitled to a verdict of not guilty.
4 (Exh. 52 at 44.)
5 The State counters that Hudson failed to support his allegations that the two
6 instructions violate due process violation whatsoever. (ECF No. 22 at 16-17.)
7 The Nevada Court of Appeals pointed out that the language of the reasonable
8 doubt instruction is prescribed by statute:
9 Here, the district court gave Nevadaâs statutory reasonable doubt
instruction as set forth and mandated by NRS 175.211. The instruction
10 explicitly stated Hudson was presumed innocent until proven guilty.
Additionally, the jury instructions made clear that the State bore the
11 burden of proving Hudson guilty. The supreme court has upheld this
precise reasonable doubt instruction on multiple occasions. See, e.g.,
12 Belcher v. State,
136 Nev. 261
, 276,
464 P.3d 1013, 1029
(2020) (â[W]e
have repeatedly upheld the constitutionality of [the reasonable doubt]
13 instruction.â). Therefore, the district court did not err in giving the
reasonable doubt jury instruction, plainly or otherwise.
14
(Exh. 52 at 14-15.)
15
The reasonable doubt instruction comes verbatim from NRS 175.211, which also
16
prohibits any other definition of reasonable doubt from being presented to a jury. NRS
17
175.211(2). See Belcher,
464 P.3d at 1029
; see also Ramirez v. Hatcher,
136 F.3d
18
1209, 1211-15
(9th Cir. 1998) (concluding that Nevadaâs reasonable-doubt instruction is
19
constitutional). Hudsonâs claim is wholly unsupported and also lacks merit.
20
The court also instructed the jury:
21
Jury Instruction No. 50 (equal and exact justice)
22
Now you will listen to the arguments of counsel who will endeavor
23 to aid you to reach a proper verdict by refreshing in your minds the
evidence and by showing the application thereof to the law; but, whatever
1 counsel may say, you will bear in mind that it is your duty to be governed
in your deliberation by the evidence as you understand it and remember it
2 to be and by the law as given to you in these instructions, with the sole,
fixed and steadfast purpose of doing equal and exact justice between the
3 Defendant and the State of Nevada.
4 (Exh. 52 at 54.)
5 The Court of Appeals disagreed that the instruction was improper:
6 Finally, Hudson argues the district courtâs âequal and exact justiceâ
instruction improperly minimized the prosecutionâs burden of proof. The
7 State counters that the district courtâs âequal and exact justiceâ instruction
did not deal with the presumption of innocence at all. It further argues that
8 the jury instructions explaining the presumption of innocence correctly
stated Nevada law.
9
Here, the district court gave a jury instruction specifically stating
10 Hudson was presumed innocent unless proven guilty. It also gave multiple
instructions making clear that the jury was required to find Hudson guilty
11 beyond a reasonable doubt. The jury instructions also made clear that the
State bore the burden of proving Hudson guilty. The supreme court has
12 upheld this âequal and exact justiceâ instruction on multiple occasions.
See, e.g., Belcher, 136 Nev. at 276,
464 P.3d at 1029
(âThis court has
13 upheld the language used in the . . . equal and exact justice instruction.â
(internal citations omitted)). Therefore, the district court did not err in
14 giving the equal and exact justice jury instruction, plainly or otherwise.
15 (Exh. 90 at 15-16.)
16 The state courts have found this jury instruction does not concern presumption of
17 innocence or burden of proof. Belcher,
464 P.3d at 1029
citing Leonard v State, 114
18 Nev. 1196
, 1209,
969 P.2d 288, 296
(1998). The jury was also instructed on
19 reasonable doubt and the presumption of innocence. While the phrase âequal and
20 exact justiceâ does appear to be unusual, Hudson has not shown that the instruction
21 conflicts with clearly established federal law. Hudsonâs claim is unsupported and
22 therefore lacks merit.
23
1 Hudson has not shown that the Nevada Court of Appealsâ decision that the four
2 jury instructions accurately stated the law and were properly given was contrary to, or
3 involved an unreasonable application of, clearly established U.S. Supreme Court law, or
4 was based on an unreasonable determination of the facts in light of the evidence
5 presented in the state court proceeding.
28 U.S.C. § 2254
(d). The Court, therefore,
6 denies habeas relief on ground 3.
7 Ground 4
8 Hudson claims that the district court erred by allowing uniformed police officers to
9 attend closing arguments. (ECF No. 5-1 at 22-23.) He argues that officers in full
10 uniform would have intimidated the jury and affected their impartiality, rendering the
11 proceedings fundamentally unfair.
12 Right before closing arguments, counsel for Turner stated that it was his
13 understanding that a lot of law enforcement were going to attend closing arguments.
14 (ECF No. 50 at 40-42.) Defense counsel acknowledged that it was an open, public
15 courtroom but argued that âthe idea that numerous, numerous officers are going to
16 come into this gallery and stare at this jury immediately before a case involving an . . .
17 officer that was shot goes to the jury is extremely prejudicial.â (Id. at 40.) Counsel for
18 Hudson joined in the objection, stating that it was a âhuge intimidation factor.â (Id. at 42.)
19 The court noted that the courtroom is a public forum, and that the proceedings must be
20 transparent, and allowed the officers to attend.
21 The State points out that Hudson fails to even allege how many officers in full
22 uniform attended closing arguments. (ECF No. 22 at 17.) They argue that he doesnât
23
1 allege, and the record doesnât show, any actions or intimidation by officers to intimidate
2 jurors.
3 The Nevada Court of Appeals addressed this claim in a footnote:
4 Hudson argues the district court erred by allowing âseveralâ armed,
uniformed officers to âpackâ the courtroom during closing arguments.
5 However, âthe mere presence of officers in the courtroom does not
demonstrate prejudice.â Turner v. State,
136 Nev. 545
, 549 n.3,
473 P.3d
6
438, 444 n.3 (2020). Apart from Hudsonâs brief objection to the officersâ
presence below there is nothing else to suggest the number of officers
7 present nor that their presence had any impact on the proceedings.
Therefore, the record is insufficient to determine the officersâ presence
8 deprived Hudson of a fair trial. See Johnson v. State,
113 Nev. 772, 776
,
942 P.2d 167, 170
(1997) (âWe cannot properly consider matters not
9 appearing in [the] record.â).
10 (Exh. 90 at 20, n.9.)
11 While the defense objected before closing arguments, there is simply nothing in
12 the record to indicate how many officers were actually in the courtroom for closing
13 arguments. And there is nothing to indicate any action or inaction by any officers or any
14 impact of their presence on the jury. Hudson cannot demonstrate that the Nevada
15 Court of Appealsâ refusal to consider the claim because the record was insufficient was
16 contrary to, or involved an unreasonable application of, clearly established U.S.
17 Supreme Court law, or was based on an unreasonable determination of the facts in light
18 of the evidence presented in the state court proceeding.
28 U.S.C. § 2254
(d). Habeas
19 relief is denied as to ground 4.
20 Ground 6
21 Hudson argues that the district court abused its discretion by failing to find that
22 his trial counsel was ineffective for failing to object to the jury instruction regarding flight.
23 (ECF No. 5.) The State counters that Hudson failed to show he suffered prejudice
1 because the court issued the flight instruction without an instruction limiting it to Turner.
2 (ECF No. 22 at 21.) So they argue that this claim that counsel was ineffective
3 necessarily fails.
4 Ineffective assistance of counsel (âIACâ) claims are governed by the two-part test
5 announced in Strickland v. Washington,
466 U.S. 668
(1984). In Strickland, the
6 Supreme Court held that a petitioner claiming ineffective assistance of counsel has the
7 burden of demonstrating that (1) the attorney made errors so serious that he or she was
8 not functioning as the âcounselâ guaranteed by the Sixth Amendment, and (2) that the
9 deficient performance prejudiced the defense. Williams,
529 U.S. at 390
-91 (citing
10 Strickland,
466 U.S. at 687
). To establish ineffectiveness, the defendant must show
11 that counselâs representation fell below an objective standard of reasonableness.
Id.
To
12 establish prejudice, the defendant must show that there is a reasonable probability that,
13 but for counselâs unprofessional errors, the result of the proceeding would have been
14 different.
Id.
A reasonable probability is âprobability sufficient to undermine confidence
15 in the outcome.â
Id.
Additionally, any review of the attorneyâs performance must be
16 âhighly deferentialâ and must adopt counselâs perspective at the time of the challenged
17 conduct, in order to avoid the distorting effects of hindsight. Strickland,
466 U.S. at 689
.
18 It is the petitionerâs burden to overcome the presumption that counselâs actions might be
19 considered sound trial strategy.
Id.
20 Ineffective assistance of counsel under Strickland requires a showing of deficient
21 performance of counsel resulting in prejudice, âwith performance being measured
22 against an objective standard of reasonableness, . . . under prevailing professional
23 norms.â Rompilla v. Beard,
545 U.S. 374, 380
(2005) (internal quotations and citations
1 omitted). When the ineffective assistance of counsel claim is based on a challenge to a
2 guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate âthat
3 there is a reasonable probability that, but for counselâs errors, he would not have
4 pleaded guilty and would have insisted on going to trial.â Hill v. Lockhart,
474 U.S. 52
,
5 59 (1985).
6 If the state court has already rejected an ineffective assistance claim, a federal
7 habeas court may only grant relief if that decision was contrary to, or an unreasonable
8 application of, the Strickland standard. See Yarborough v. Gentry,
540 U.S. 1, 5
(2003).
9 There is a strong presumption that counselâs conduct falls within the wide range of
10 reasonable professional assistance.
Id.
11 The United States Supreme Court has described federal review of a state supreme
12 courtâs decision on a claim of ineffective assistance of counsel as âdoubly deferential.â
13 Cullen,
563 U.S. at 190
(quoting Knowles v. Mirzayance,
556 U.S. 111, 123
(2009)).
14 The Supreme Court emphasized that: âWe take a âhighly deferentialâ look at counselâs
15 performance . . . through the âdeferential lens of § 2254(d).ââ Id. (internal citations
16 omitted). Moreover, federal habeas review of an ineffective assistance of counsel claim
17 is limited to the record before the state court that adjudicated the claim on the merits.
18 Cullen,
563 U.S. at 181-84
. The United States Supreme Court has specifically
19 reaffirmed the extensive deference owed to a state court's decision regarding claims of
20 ineffective assistance of counsel:
21 Establishing that a state courtâs application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
22 created by Strickland and § 2254(d) are both âhighly deferential,â id. at
689,
104 S.Ct. 2052
; Lindh v. Murphy,
521 U.S. 320, 333, n.7
,
117 S.Ct.
2059
,
138 L.Ed.2d 481
(1997), and when the two apply in tandem, review
23 is âdoublyâ so, Knowles,
556 U.S. at 123
. The Strickland standard is a
general one, so the range of reasonable applications is substantial.
556
U.S. at 124
. Federal habeas courts must guard against the danger of
1 equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is whether there is
2 any reasonable argument that counsel satisfied Strickland's deferential
standard.
3
Harrington, 562
U.S. at 105. âA court considering a claim of ineffective assistance of
4
counsel must apply a âstrong presumptionâ that counselâs representation was within the
5
âwide rangeâ of reasonable professional assistance.â
Id.
at 104 (quoting Strickland, 466
6
U.S. at 689). âThe question is whether an attorneyâs representation amounted to
7
incompetence under prevailing professional norms, not whether it deviated from best
8
practices or most common custom.â Id. (internal quotations and citations omitted).
9
Here, the Nevada Court of Appeals held that, even assuming arguendo that giving
10
the flight instruction without a limiting instruction was error,
11
Hudson has failed to demonstrate that the error affected his substantial
rights. He has likewise failed to demonstrate that any failure to object to
12
the instruction prejudiced him for purposes of his ineffective assistance of
counsel claim. See [Strickland v. Washington,
466 U.S. 668, 705
]. Hudson
13
has not pointed to anything in the record that might suggest the jury
mistakenly applied the flight instruction to him, and the jury could not have
14
done so because there was no âgoing awayâ on Hudsonâs part that might
have been misinterpreted as flight. As such, Hudson has not
15
demonstrated âthere is a reasonable probability that the verdict would
have been differentâ but for counselâs failure to object to the flight
16
instruction.
Id.
We need only determine that Hudson has failed as to at
least one of the prongs of his ineffective assistance of counsel claim to
17
dispose of it.
Id.
Because Hudson has failed to demonstrate prejudice, we
cannot conclude that the district court abused its discretion in finding that
18
Hudson had not received ineffective assistance of counsel based on his
counselâs failure to object to the flight instruction.
19
(Exh. 90 at 21-22.)
20
Hudson has not demonstrated that any error in not limiting the flight instruction to
21
Turner violated due process. His argument that he was prejudiced by his counsel failing
22
to object to the omission when the instruction very clearly did not apply to him belies
23
common sense. Hudson has not shown that the Nevada Court of Appealsâ decision on
1 federal ground 6 was contrary to, or involved an unreasonable application of, Strickland,
2 or was based on an unreasonable determination of the facts in light of the evidence
3 presented in the state court proceeding.
28 U.S.C. § 2254
(d). The Court denies habeas
4 relief on ground 6.
5 Ground 5
6 Hudson contends that cumulative error in trial proceedings violated his
7 constitutional rights. The Ninth Circuit has held that the combined effect of multiple trial
8 court errors violates due process where it renders the resulting criminal trial
9 fundamentally unfair. Parle v. Runnels,
505 F.3d 922, 927
(9th Cir. 2007), citing
10 Chambers v. Mississippi,
410 U.S. 284, 298
(1973). The cumulative effect of multiple
11 errors can violate due process even where no single error rises to the level of a
12 constitutional violation or would independently warrant reversal. Chambers,
410 U.S. at
13
290 n.3. The fundamental question in determining whether the combined effect of trial
14 errors violated a defendantâs due process rights is whether the errors rendered the
15 criminal defense âfar less persuasive,â and thereby had a âsubstantial and injurious
16 effect or influenceâ on the juryâs verdict. Parle,
505 F.3d at 928
(citing Chambers, 410
17 U.S. at 294); Brecht v. Abrahamson,
507 U.S. 619, 637
(1993).
18 The Nevada Court of Appeals held that the two instances of prosecutorial
19 misconduct did not warrant reversal of Hudsonâs conviction:
20 Even if every error below fails to provide grounds for reversal alone,
the cumulative effect of those errors may provide such grounds.
21 Hernandez v. State,
118 Nev. 513, 535
,
50 P.3d 1100, 1115
(2002). When
reviewing a cumulative error claim, this court looks to three factors: â(1)
22 whether the issue of guilt is close, (2) the quantity and character of the
error, and (3) the gravity of the crime charged.â Mulder v. State,
116 Nev.
23
1, 17,
992 P.2d 845, 854-55
(2000). Here, as to the first Mulder factor, the
prosecution presented substantial evidence of Hudsonâs guilt including his
DNA on the shotgun, and his own confession to having gone to Clarksonâs
1 house to steal marijuana and to shooting the shotgun at the house. We
also note Hudson was charged under alternative theories of liability
2 including aiding or abetting Turner and conspiring with Turner. As to the
second factor, two errors occurred during Hudsonâs trial. Each was an
3 incident of prosecutorial misconduct. Although troubling, these two
instances of misconduct were brief comments made near the end of a ten-
4 day trial, and they do not warrant the reversal of Hudsonâs conviction
considering the strong evidence that otherwise implicated him, even
5 considering the gravity of the crimes of which he was convicted, under the
third Mulder factor. Therefore, we decline to reverse Hudsonâs conviction
6 based on the two instances of prosecutorial misconduct.
7 (Exh. 90 at 19-20.)
8 Considering the extensive evidence presented, including Hudsonâs statements
9 that he went to the house to steal marijuana and that he fired the shotgun, and that his
10 DNA was on the shotgun, the Court of Appeals reasonably concluded that two brief
11 instances of prosecutorial misconduct during closing arguments, even assessed
12 cumulatively, did not warrant reversal of his conviction. This Court agrees Hudson has
13 not shown that the Nevada Court of Appealsâ decision on federal ground 5 was contrary
14 to, or involved an unreasonable application of, clearly established U.S. Supreme Court
15 law, or was based on an unreasonable determination of the facts in light of the evidence
16 presented in the state court proceeding.
28 U.S.C. § 2254
(d). The Court denies habeas
17 relief on ground 5.
18 The Petition, therefore, is denied in its entirety.
19
IV. Certificate of Appealability
20
21 This is a final order adverse to the Petitioner. As such, Rule 11 of the Rules
22 Governing Section 2254 Cases requires this Court to issue or deny a Certificate of
23 Appealability (COA). Accordingly, the court has sua sponte evaluated the claims within
the Petition for suitability for the issuance of a COA. See
28 U.S.C. § 2253
(c); Turner v.
2|| Calderon,
281 F.3d 851, 864-65
(9" Cir. 2002).
3 Pursuant to
28 U.S.C. § 2253
(c)(2), a COA may issue only when the petitioner âhas
made a substantial showing of the denial of a constitutional right.â With respect to
5|| claims rejected on the merits, a petitioner âmust demonstrate that reasonable jurists
6|| would find the district courtâs assessment of the constitutional claims debatable or
wrong.â Slack v. McDaniel,
529 U.S. 473, 484
(2000) (citing Barefoot v. Estelle, 463
880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
9|| jurists could debate (1) whether the petition states a valid claim of the denial of a
constitutional right and (2) whether the court's procedural ruling was correct. /d.
11 Having reviewed its determinations and rulings in adjudicating Hudsonâs petition, the
court finds that none of those rulings meets the S/ack standard. The Court therefore
declines to issue a certificate of appealability for its resolution of Hudsonâs Petition.
V. Conclusion
is therefore ordered that the Petition (ECF No. 5) is DENIED.
16 It is further ordered that a Certificate of Appealability will not issue.
7 The Clerk of the Court is directed to:
13 e Substitute Ronald Oliver for Respondent William Hutchings; and
e Enter judgment accordingly and close this case.
19
20
DATED: 24 June 2025.
21 âyy Yf
23 UNITED/STATES DISTRICT JUDGE
30Case Information
- Court
- D. Nev.
- Decision Date
- June 24, 2025
- Status
- Precedential