Brown v. Baca

• Decision Date: 29 August 2017
• Docket Number: 2:11-cv-00790-KJD-NJK
• Parties: BEAU BROWN, Petitioner, v. ISIDRO BACA, et al., Respondents.
• Court: U.S. District Court — District of Nevada

BEAU BROWN, Petitioner, v. ISIDRO BACA, et al., Respondents.

2:11-cv-00790-KJD-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

August 29, 2017

ORDER

Introduction

This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Beau Brown, a Nevada prisoner. The respondents have filed an answer, responding to the claims remaining in Brown's first amended petition for writ of habeas corpus, and Brown has filed a reply. The Court will deny Brown's petition.

Background

In its order affirming Brown's judgment of conviction, the Nevada Supreme Court described the background of the case as follows:

On June 24, 2000, police responded to a call of a robbery in progress at Bains Mini Market in Reno, Nevada. According to witnesses, Brown, together with two customers of the mini-mart, was performing CPR on Kuldip Bains, the owner of the market. Bains had been shot in the face. Brown was observed repeatedly stating, "You can't die, he can't die." When police arrived they asked Brown for identification. Brown, accompanied by an officer, went to his car to retrieve identification.

Officer Rulla noticed a handgun in the back seat of Brown's car. He picked up the gun and questioned Brown as to its owner. A struggle ensued, and Rulla tossed the gun back into the car. Brown broke free, and Rulla shouted, "Gun!" Officers tackled Brown to the ground. Brown's head hit the pavement, causing seizures and a momentary loss of consciousness. Emergency medical personnel took Brown to Washoe Medical Center for his injuries. Video surveillance from Bains Market captured most of this incident.

At the hospital, several officers had custody and control of the clothes emergency personnel cut from Brown's body. At trial, the State conceded several officers, some of whom did not sign the evidence logs as required, had handled the clothes. Upon release from the hospital, police took Brown to the Reno Police Department on charges of obstruction and resisting a police officer.

Police advised Brown of his Miranda rights. Brown, dressed only in a hospital gown, agreed to discuss his day, although he allegedly suffered amnesia from the altercation with police. Brown's blood alcohol level was .17, a fact known to the interviewing detective.

According to Brown, he went to Bains Market and purchased various items, including vodka. After making the purchases, Brown drove his car to pick up a friend named Travis. The car contained, among other things, a ten-millimeter Colt handgun and a .22 caliber handgun. Both handguns belonged to Brown's father.

Brown stated that he and Travis attempted to buy marijuana from a Carlos Hernandez. They drank vodka while waiting for Hernandez at a location near Bains Market. Brown testified that Hernandez mistrusted Travis, so Travis drove away in Brown's car. Fifteen minutes later, Travis allegedly returned and told Brown he shot Bains, the owner of Bains Market. Brown then drove to the market to assist Bains.

Detective Wes Myers obtained a telephonic warrant to search Brown's car and home. Police towed the car from the convenience store to the Washoe County Crime Lab. The search revealed a pair of Adidas jogging pants with a stripe on the side, white T-shirt, black shirt, dark colored backpack, Colt ten-millimeter handgun with a fully loaded magazine, gun holster, dark blue baseball cap, wallet, and two bottles of vodka.

The car remained in impound for several months. Prior to the release of the car, officers, in the presence of all counsel, searched the car again. This time, police recovered a box cutter, prescription drug bottles, a Guns & Ammo magazine, and film canisters with an aroma of marijuana. Brown filed a pre-trial motion to suppress the evidence obtained in the second search for lack of a warrant.

The district court denied Brown's motion, finding the search was done with consent of Brown, however, the district court ruled that some of the evidence was more prejudicial than probative. The district court excluded the box cutter in light of the events of September 11. Subsequent to the suppression ruling, police found a ski mask with eyeholes cut in it near the crime scene. The mask contained the DNA of Brown and an unidentified individual. Based upon the possibility that the box cutter could have been used to cut the eyeholes in the mask, the district court revised its earlier ruling and indicated the box cutter could be admitted.

After a seven-day trial, a jury convicted Brown of murder in the first degree with the use of a firearm, attempted robbery with a deadly weapon, and burglary with a deadly weapon.

Order of Affirmance, Exhibit 62, pp. 1-3 (ECF No. 18-11, pp. 2-4). (The exhibits referred to in this order were filed by Brown, and are located in the record at ECF Nos. 16, 17, 18, 19, 28 and 40.)

The judgment of conviction was entered on July 30, 2002. See Judgment, Exhibit 51 (ECF No. 18). Brown was sentenced to: two consecutive sentences of life in prison without the possibility of parole for the murder with the use of a firearm; two consecutive sentences of 24 to 60 months in prison for the attempted robbery with use of a deadly weapon, to be served concurrently with the life sentences; and a sentence of 24 to 120 months in prison for the burglary, to be served concurrently with the other sentences. See id.

Brown appealed, and the Nevada Supreme Court affirmed the judgment of conviction on January 8, 2004. See Order of Affirmance, Exhibit 62 (ECF No. 18-11).

On January 26, 2005, Brown filed a post-conviction petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64 (ECF No. 18-13). The state district court held an evidentiary hearing (see Exhibits 69-71 (ECF Nos. 18-18, 18-19, 18-20)), and entertained supplemental briefing (see Exhibits 72-74 (ECF Nos. 18-21, 18-22, 18-23)). The state district court denied the petition, in a written order, on May 6, 2010. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76 (ECF No. 19). Brown appealed, and the Nevada Supreme Court affirmed on May 9, 2011. See Order of Affirmance, Exhibit 85 (ECF No. 19-9).

While the appeal from the denial of his first state habeas corpus petition was still pending, on October 12, 2010, Brown filed a second state petition for writ of habeas corpus. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 80 (ECF No. 19-4). The state district court dismissed that petition on November 19, 2012. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 110 (ECF No. 40-2). Brown appealed, and the Nevada Supreme Court affirmed on September 16, 2014. See Order of Affirmance, Exhibit 120 (ECF No. 40-12).

This Court received Brown's federal habeas petition, initiating this action pro se, on May 17, 2011 (ECF No. 1). The Court granted Brown's motion for appointment of counsel, and appointed counsel to represent him. See Order entered May 20, 2011 (ECF No. 7); Notice of Representation of Petitioner (ECF No. 10). With counsel, Brown filed a first amended petition for writ of habeas corpus (ECF No. 15) on January 23, 2012. Brown's first amended petition asserted the following claims:

1A. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for antagonizing the jury during closing arguments" in the penalty phase of the trial. First Amended Petition (ECF No. 15), p. 7.

1B. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to obtain the original surveillance tape and provide it to her expert witness." Id. at 8.

1C. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to object to the defective verdict form." Id. at 9.

1D. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to properly object to the attempted robbery instructions." Id. at 10.

1E. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to object to the testimony from the victim's family regarding preferred punishment." Id. at 11.

1F. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to present mitigation evidence at the penalty hearing." Id. at 12.

1G. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to request a complete motive instruction." Id. at 13.

1H. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to investigate whether Mr. Bimbo's testimony was the product of a conspiracy between himself and the victim's son and for failing to impeach Mr. Bimbo with the information." Id. at 13.

1I. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to challenge the flight instruction." Id. at 14.

1J. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "in the presentation of her objection to the testimony of Officer Knight." Id. at 15.1K. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to object to Sarvpreet Bains' penalty phase testimony." Id. at 16.

1L. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, "in her presentation of the motion to suppress Brown's statements." Id. at 17.

1M. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, as a result of the cumulative effect of counsel's errors. Id. at 17.

2A. Appellate counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to challenge the defective verdict form on appeal." Id. at 18.

2B. Appellate counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to properly challenge the attempted robbery instruction on appeal." Id. at 18.

2C. Appellate counsel was ineffective, in violation of Brown's federal

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