Brass v. Williams

• Decision Date: 01 May 2020
• Docket Number: Case No.: 2:13-cv-02020-GMN-VCF
• Parties: GEORGE M. BRASS, Petitioner v. BRIAN WILLIAMS, SR., et al., Respondents.
• Court: U.S. District Court — District of Nevada

GEORGE M. BRASS, Petitioner v. BRIAN WILLIAMS, SR., et al., Respondents.

Case No.: 2:13-cv-02020-GMN-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

May 1, 2020

Order

Petitioner George M. Brass filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the Court for adjudication of the merits of the remaining grounds in the petition. For the reasons discussed below, this court denies the petition, denies a certificate of appealability, and directs the Clerk of the Court to enter judgment accordingly.

Background

Brass was charged with crimes related to events that occurred in Clark County, Nevada on September 15, 2006, and September 22, 2006. ECF No. 32-1. On September 15, 2006, Graciela Saavedra de Cerda was sitting in a van with her son at a business complex in Las Vegas, Nevada. ECF No. 33-2 at 43. Saavedra de Cerda testified that there were several Mexican men standing outside of the business complex talking. Id. at 51. Saavedra de Cerda noticed three young African American men "walking from a path that was coming from some apartments nearby" towards the group of Mexican men, and a few minutes later, she heard six gunshots. Id. at 44, 50.

One of the Mexican men, Martin Candelos, testified that he was standing outside of a counseling meeting with his friend, Antonio Perez-Martinez, and a new acquittance, Mario Mendez. Id. at 61-62. They were approached by three African American men who pointed two guns at them and demanded money. Id. at 67-68. Candelos managed to get away after struggling with one of the African American men and was shot at as he was running away. Id. at 71-73. Perez-Martinez was shot and killed in the confrontation, and Mendez managed to hide behind a palm tree. Id. at 90, 95.

One week later, on September 22, 2006, Victor Manuel Abris, Leodelgado Leon Carlos, Lovardo Ledesma Nunez, Cesar Carrizales, and Saul Nunez-Suastegui were outside of the Village Palm Apartments in Las Vegas, Nevada. ECF No. 33-2 at 213-215. The five men were standing around talking when they heard "the cocking of a weapon or something." Id. at 217. Thereafter, four African American men, each with a handgun and wearing a face-covering scarf, approached and demanded money. Id. at 219-220. Even though some of the five men attempted to give the African American men their wallets or jewelry, all four African American men started firing their weapons. Id. at 222, 233. Carrizales was shot in the head and survived; however, Nunez-Suastegui suffered a fatal gunshot wound. Id. at 234-35; ECF No. 33-3 at 12-13.

Regarding the September 15, 2006 crime scene, Brass's fingerprints were found on a gate near the scene, and the casings and bullets recovered from the scene and the bullet recovered from the autopsy of Perez-Martinez were linked to a .9-millimeter handgun belonging to one of Brass's co-defendants, Eugene Nunnery. ECF No. 33-2 at 141-42, 151-54, 189; ECF No. 33-3 at109-112. Regarding the September 22, 2006 events, it was determined that Nunez-Suastegui was shot by the same .9-millimeter handgun belonging to Nunnery. ECF No. 33-3 at 113-116. There were also casings found at the scene linked to a .45-caliber gun and bullets linked to a medium caliber gun. Id. at 113-114, 118. Brass's cell phone was recovered near the scene. Id. at 96, 149-52, 167. During a police interview, Brass admitted that he was with Nunnery on September 22, 2006, but Brass alleged that Nunnery got into an altercation with one of the victims and starting shooting after Brass had already started to walk away. ECF No. 33-3 at 182-83, 188. Later, during a search of Brass's parents' residence, a revolver was located. ECF No. 33-4 at 27-28.

Following a jury trial, on October 20, 2009, Brass was found guilty of the charges related to the September 22, 2006 incident: one count of murder with the use of a deadly weapon, two counts of attempted murder with the use of a deadly weapon, one count of conspiracy to commit robbery, one count of robbery with the use of a deadly weapon, and two counts of attempted robbery with the use of a deadly weapon. ECF No. 34-1. Brass was found not guilty of the September 15, 2006 events. Id. The state district court sentenced Brass to two consecutive terms of life with the possibility of parole. ECF No. 34-6. Brass appealed, and the Nevada Supreme Court affirmed. ECF No. 36-1. Remittitur issued on January 4, 2011. ECF No. 36-2.

Brass filed a pro se state habeas petition and a counseled, supplemental memorandum in support of his petition on April 5, 2011 and January 9, 2012, respectively. ECF Nos. 36-4, 38-3. An evidentiary hearing was held on June 18, 2012, and on July 30, 2012, the state district court denied Brass's state habeas petition. ECF Nos. 39, 39-1. Brass appealed, and the Nevada Supreme Court affirmed. ECF No. 40-2. Remittitur issued on October 18, 2013. ECF No. 40-3.

Brass filed a pro se federal habeas petition and a counseled, first amended petition on November 22, 2013 and December 17, 2014, respectively. ECF Nos. 7, 24. On January 9, 2015,Brass moved for a stay and abeyance of his federal habeas action in order to exhaust his remedies in state district court. ECF No. 43. The Respondents moved to dismiss Brass's first amended petition and opposed his motion for a stay and abeyance. ECF Nos. 47, 48.

On September 18, 2015, Brass filed a second state habeas petition. ECF No. 73-1. The state district court denied the petition, and the Nevada Court of Appeals affirmed on October 18, 2016. ECF Nos. 73-3, 73-5.

On September 7, 2017, this court denied Brass's motion for stay and abeyance as moot and denied the Respondents' motion to dismiss without prejudice. ECF No. 65. The Respondents renewed their motion to dismiss Brass's first amended federal habeas petition on February 2, 2018. ECF No. 72. This court granted the renewed motion to dismiss in part. ECF No. 84. Specifically, this court dismissed Grounds Four and Nine. Id. at 10. The Respondents answered the remaining claims on August 23, 2018. ECF No. 89. Brass replied on November 5, 2018. ECF No. 98.

In his remaining ground for relief, Brass alleges the following violations of his federal constitutional rights:

1. The state district court impermissibly admitted the revolver.

2. Joinder of the two September 2006 instances for trial was fundamentally unfair.

3. The state district court improperly allowed the prior testimony of two witnesses.

5. The state district court impermissibly denied his theory of defense instruction and allowed other instructions that contradicted the mere presence instruction given.

6a. His trial counsel failed to investigate or hire experts related to the revolver, the bullet fragment, or the gun powder residue.

6b. His trial counsel refused to allow him to testify.

6c. His trial counsel failed to object to prosecutorial misconduct.

6d. His trial counsel failed to object to the unlawfully composed jury.

6e. His trial counsel failed to object to improper jury instructions.

7a. His appellate counsel failed to federalize claims.7b. His appellate counsel failed to raise ineffective-assistance-of-counsel claims.

7c. His appellate counsel failed to argue error in granting the motion to withdraw his guilty plea.

8. His trial counsel failed to investigate and erroneously advised him in relation to the plea agreement.

10. There were cumulative errors.

ECF No. 24.

Discussion

A. Standard of review

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act ("AEDPA"):

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 was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

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

The Supreme Court has instructed that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a "difficult to meet" and "highly deferential standard for...