2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JOHN VERNON FIELDS, Case No. 3:16-cv-00298-MMD-CLB

7 Petitioner, ORDER v. 8 RENEE BAKER, et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner John Fields filed a petition for writ of habeas corpus under

2254 (ECF No. 15 (“Petition”)). This habeas matter comes before the Court for a final 14 decision on the merits on the sole remaining ground. The Court denies the Petition and 15 denies Petitioner a certificate of appealability. 16 II. BACKGROUND 17 Petitioner challenges his 2007 Nevada state judgment of conviction, pursuant to a 18 jury verdict, of first-degree murder with use of a deadly weapon and conspiracy to commit 19 murder in connection with Jaromir Palensky’s death. (ECF Nos. 23-16, 23-17.) Palensky 20 was last seen alive at a ranch outside of Elko, Nevada. (ECF No. 24-8 at 3.) The ranch 21 was leased by Petitioner and Petitioner’s wife, Linda Fields (together, the “Fieldses”). (Id.) 22 The state district court sentenced Petitioner to life without the possibility of parole for the 23 murder count, with an equal and consecutive term for the deadly weapon enhancement. 24 (ECF No. 23-21 at 3.) Petitioner was also sentenced to a term of 48 to 120 months for the 25 conspiracy to commit murder count, concurrent to the murder sentence. (Id.) 26 Linda Fields was tried separately. (ECF No. 31-26.) She was convicted by a jury 27 of first-degree murder in March 2007. (Id.) Unlike Petitioner, Linda Fields was not charged 28 with conspiracy to commit murder. (ECF No. 24-32 at 3 n.1.) In addition, as will be 2 presentation of evidence at trial were not the same as the State’s theory against 3 Petitioner, despite the fact that both trials related to Palensky’s murder. (ECF Nos. 23-5– 4 23-15, 31-1–31-28.) 5 At Petitioner’s trial, the state district court admitted prior bad act evidence showing 6 the Fieldses previously solicited someone to murder an unrelated individual, Roy Mobert. 7 (ECF No. 24-8 at 4, 6.) See also Fields v. State,

(2009). Petitioner 8 challenged the district court’s admission of: (1) Mobert’s lawyer’s testimony, documents 9 Mobert’s lawyer authenticated that demonstrated the Fieldses’ debt to Mobert, and 10 Mobert’s foreclosure proceedings against the Fieldses; and (2) a tape recording that 11 captured the Fieldses and an individual named Billy Wells discussing a proposal that 12 Wells kill Mobert and make it look like an accident (“Wells recording”). (ECF No. 24-8 at 13 4-5.) The district court conducted a Petrocelli hearing and gave the jury limiting 14 instructions before and after admitting the evidence. (Id. at 5.) 15 Petitioner appealed this decision to the Nevada Supreme Court. Upon appeal, 16 however, Petitioner’s appellate counsel did not include trial exhibits, the documents 17 Mobert’s lawyer authenticated, or the Wells recording (collectively, the “Mobert 18 evidence”), in the record on appeal.1 (Id.) As the Nevada Supreme Court noted, it was 19 Petitioner’s responsibility to provide materials necessary for the court to review. (Id.) The 20 record was sufficient to review Petitioner’s challenge to the admitted evidence because it 21 had Mobert’s lawyer’s testimony as well as the pretrial and trial transcripts. (Id.) Without 22 the Mobert evidence, however, the court’s review was limited in scope. (Id.) 23 Nonetheless, the Nevada Supreme Court determined the state district court 24 correctly found the Mobert evidence was “relevant to motive, intent, knowledge, and 25 identity.” (Id. at 6.) The Nevada Supreme Court found Mobert’s lawyer’s testimony 26 regarding the civil litigation between Mobert and the Fieldses was properly admitted to 27

28 1The Nevada Supreme Court noted that the recording was played at trial, but it was not transcribed into the record. (ECF No. 24-8 at 5.) 2 also reviewed arguments at the Petrocelli hearing regarding the Wells recording. (Id.) It 3 found the Mobert evidence was relevant to knowledge and intent because it “tended to 4 show that [Petitioner] was not an innocent or ignorant bystander to Linda [Fields]’s alleged 5 murderous scheme, as [Petitioner] claimed.” (Id. at 9.) The evidence proved identity which 6 was a central disputed issue. (Id. at 10.) Moreover, the court determined that “there was 7 sufficient proof, independent of the Mobert evidence, to convict [Petitioner] of both murder 8 and conspiracy to commit murder.” (Id. at 12-13.) The Nevada Supreme Court, en banc, 9 issued its decision affirming Petitioner’s conviction on December 10, 2009. (Id. at 2.) 10 On that same day, the Nevada Supreme Court reversed Linda Fields’ judgment of 11 conviction and remanded her case to the state district court for further proceedings. (ECF 12 No. 31-28.) See also Fields v. State,

(2009). The Nevada Supreme 13 Court found the district court abused its discretion “in admitting this bad act evidence 14 because the prior conspiracy was not similar enough to the crimes charged to be relevant 15 as proof of a common plan or scheme.” (ECF No. 31-28 at 3.) Linda Fields’ appeal was 16 decided by a three-justice panel. (ECF Nos. 24-8, 31-28.) Two of the three justices on the 17 panel dissented from the five-justice majority ruling in Petitioner’s direct appeal. (Id.) 18 Petitioner filed a petition for rehearing of the en banc decision affirming Petitioner’s 19 conviction, based on Linda Fields’ conviction reversal, but this petition was denied with 20 no dissents. (ECF Nos. 24-9, 24-10.) In addition, the State filed a petition for en banc 21 reconsideration of Linda Fields’ appeal that was denied on the procedural basis that the 22 State failed to file a petition for rehearing.2 See Fields v. State, Case No. 49417, Doc. 10- 23 02682 (Nev. Feb. 1, 2010). 24 Petitioner filed a state habeas petition. (ECF No. 28-28.) Petitioner’s appellate 25 counsel testified at the post-conviction evidentiary hearing. (ECF No. 28-23.) At the time, 26

27 2In addition to materials on file, the Court takes judicial notice of the online docket records of the state appellate court. See, e.g., Harris v. County of Orange,

, 28 1131-32 (9th Cir. 2012). The online docket record may be accessed at https://nvcourts.gov/Supreme/. 2 Office. (Id. at 5-6.) Prior to that, counsel was a Deputy Public Defender in Ely, Nevada, 3 and had extensive experience handling direct appeals before the Nevada Supreme Court. 4 (Id. at 6-7.) During the post-conviction evidentiary hearing, counsel testified that the 5 decision not to submit the Mobert evidence as exhibits to the court was tactical. (Id. at 6 15.) Mobert’s attorney identified the missing exhibits from the record on appeal when he 7 testified at trial, which included exhibits pertaining to civil litigation between Mobert and 8 the Fieldses, as well as the power of attorney Mobert gave Linda Fields. (Id. at 11-12.) 9 Counsel recalled the documentary exhibits were “comparatively vanilla” to Mobert’s 10 attorney’s testimony which “g[a]ve a running commentary as to how all these things 11 implicated the Fields[es].” (Id. at 13-14.) As such, counsel believed Mobert’s attorney 12 “summed up” the exhibits and Mobert’s attorney’s testimony as to what the documents 13 constituted “was what really did in [Petitioner] as the prior bad acts.” (Id. at 13.) 14 As for the Wells recording, appellate counsel testified that he believed the trial 15 judge’s findings summarized the recording in great detail and adequately relayed the 16 defense’s point as to why it was not admissible. (Id. at 14.) Further, counsel characterized 17 the recording as having a quality of “sleaziness,” such that counsel believed the trial 18 judge’s summary of “how harmful it was truly to [Petitioner] . . . made [the defense’s] 19 argument better than submitting the tape.” (Id. at 14-15.) Counsel believed the recording 20 tended to result in a “knee-jerk reaction” and there were “more reasons to have kept out 21 the tape than to have kept it in.” (Id. at 19.) 22 After the evidentiary hearing, the state district court denied the petition. (ECF No. 23 24-19.) The Nevada Supreme Court affirmed the district court’s denial. (ECF No. 24-32.) 24 Petitioner’s federal pro se habeas petition was dispatched on June 2, 2016 and filed on 25 November 14, 2016. (ECF Nos. 1, 6.) The Court granted Petitioner’s motion for 26 appointment of counsel and Petitioner filed an amended petition. (ECF No. 15.) 27 /// 28 /// 2 failing to submit all relevant records and exhibits to the Nevada Supreme Court in support 3 of Petitioner’s appeal. (ECF No. 15 at 9.) 4 III. LEGAL STANDARD 5 A. Review under the Antiterrorism and Effective Death Penalty Act

6

(d) sets forth the standard of review generally applicable in 7 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (AEDPA): 8 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 9 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 10

11 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 12 Supreme Court of the United States; or

13 (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. 14

15

(d). A state court decision is contrary to established Supreme Court 16 precedent, within the meaning of § 2254(d), “if the state court applies a rule that 17 contradicts the governing law set forth in [Supreme Court] cases” or “if the state court 18 confronts a set of facts that are materially indistinguishable from a decision of [the 19 Supreme] Court.” Lockyer v. Andrade,

(2003) (first quoting Williams v.

U.S. 362, 405-06 (2000), and then citing Bell v. Cone,

, 694 21 (2002)). A state court decision is an unreasonable application of established Supreme 22 Court precedent under § 2254(d), “if the state court identifies the correct governing legal 23 principle from [the Supreme] Court’s decisions but unreasonably applies that principle to 24 the facts of the prisoner’s case.” Id. at 75. “The ‘unreasonable application’ clause requires 25 the state court decision to be more than incorrect or erroneous. The state court’s 26 application of clearly established law must be objectively unreasonable.” Id. 27 The Supreme Court has instructed that “[a] state court’s determination that a claim 28 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 2 (2011) (quoting Yarborough v. Alvarado,

(2004)). “[E]ven a strong case 3 for relief does not mean the state court’s contrary conclusion was unreasonable.”

at 4 102 (citing Lockyer,

); see also Cullen v. Pinholster,

, 181 5 (2011) (internal quotation marks and citations omitted) (describing the standard as 6 “difficult to meet” and “highly deferential standard for evaluating state-court rulings, which 7 demands that state-court decisions be given the benefit of the doubt”). 8 B. Standard for evaluating an Ineffective-Assistance-of-Counsel claim 9 In Strickland, the Supreme Court propounded a two-prong test for analysis of 10 ineffective-assistance-of-counsel claims requiring Petitioner to demonstrate that: (1) the 11 counsel’s “representation fell below an objective standard of reasonableness[;]” and (2) 12 the counsel’s deficient performance prejudices Petitioner such that “there is a reasonable 13 probability that, but for counsel’s unprofessional errors, the result of the proceeding would 14 have been different.” Strickland v. Washington,

(1984). Courts 15 considering an ineffective-assistance-of-counsel claim must apply a “strong presumption 16 that counsel’s conduct falls within the wide range of reasonable professional assistance.” 17

. It is Petitioner’s burden to show “counsel made errors so serious that counsel 18 was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”

. 19 Additionally, to establish prejudice under Strickland, it is not enough for Petitioner to 20 “show that the errors had some conceivable effect on the outcome of the proceeding.”

21 at 693. Rather, errors must be “so serious as to deprive [Petitioner] of a fair trial, a trial 22 whose result is reliable.”

. 23 Where a state court previously adjudicated the ineffective-assistance-of-counsel 24 claim under Strickland, establishing the court’s decision was unreasonable is especially 25 difficult. See Richter, 562 U.S. at 104-05. In Richter, the Supreme Court clarified that 26 Strickland and § 2254(d) are each highly deferential, and when the two apply in tandem, 27 review is doubly so. See id. at 105; see also Cheney v. Washington,

, 995 28 (9th Cir. 2010) (internal quotation marks omitted) (“When a federal court reviews a state 2 standards apply; hence, the Supreme Court’s description of the standard as doubly 3 deferential.”). The Court further clarified, “[w]hen § 2254(d) applies, the question is not 4 whether counsel’s actions were reasonable. The question is whether there is any 5 reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 6 562 U.S. at 105. 7 In order to prevail on Petitioner’s ineffective-assistance-of-appellate-counsel claim, 8 Petitioner must show that his appellate counsel acted deficiently and “a reasonable 9 probability that, but for his [appellate] counsel’s” deficiency, “[Petitioner] would have 10 prevailed on his appeal.” Smith v. Robbins,

(2000). When evaluating 11 claims of ineffective assistance of appellate counsel, the performance and prejudice 12 prongs of the Strickland standard partially overlap. See, e.g., Bailey v. Newland,

(9th Cir. 2001); Miller v. Keeney,

(9th Cir. 1989). 14 Courts need not first determine whether appellate counsel's performance was deficient 15 before examining the prejudice suffered by the defendant as a result of the alleged 16 deficiency. See Strickland,

. Since it is necessary to prove prejudice, any 17 deficiency that does not result in prejudice must necessarily fail. The ultimate focus of 18 inquiry must be on the fundamental fairness of the proceeding whose result is being 19 challenged.

. The object of an ineffectiveness claim is not to grade counsel's 20 performance.

. Effective appellate advocacy requires weeding out weaker 21 issues with less likelihood of success. See Bailey,

. The failure to 22 present a weak issue on appeal neither falls below an objective standard of competence 23 nor causes prejudice to the client for the same reason—because the omitted issue has 24 little or no likelihood of success on appeal.

25 IV. DISCUSSION 26 Petitioner alleges that Petitioner received ineffective assistance of appellate 27 counsel in violation of his federal constitutional rights when his appellate counsel failed to 28 /// 2 9.) In Petitioner’s state habeas appeal, the Nevada Supreme Court held: 3 Fields fail[ed] to demonstrate that the district court erred. Fields [did] not explain how counsel’s decisions regarding which exhibits to include in the 4 record on appeal were objectively unreasonable. See Lara v. State,

,

(2004) (explaining that strategic decisions 5 are virtually unchallengeable). Moreover, Fields d[id] not explain how the outcome of his claim would have been different had counsel transmitted the 6 exhibits, and we reject his suggestion that he was prejudiced per se because his wife included the exhibits in her appeal and obtained relief on 7 a similar issue. [FN1] We note that the joint appendix submitted in this case does not include the entire trial transcripts. Therefore, even assuming that 8 appellate counsel was deficient, Fields fails to demonstrate that the result of his appeal would have been different. See Greene v. State,

, 9 558,

(1980) (“The burden to make a proper appellate record rests on appellant.”) 10 [FN1] Fields was charged with conspiracy to commit murder whereas 11 his wife was not.

12 (ECF No. 24-32 at 3-4.) The Nevada Supreme Court’s rejection of this claim was neither 13 contrary to, nor an unreasonable application of, clearly established federal law. 14 The Nevada Supreme Court’s determination that Petitioner failed to demonstrate 15 prejudice was not an objectively unreasonable application of Strickland.3 Petitioner failed 16 to demonstrate a reasonable probability that the submission of the Mobert evidence in 17 the record on appeal would have changed the outcome of the appeal. Although the court 18 “noted that [Petitioner] did not transmit certain related exhibits, which limited [its] review,” 19 it nonetheless determined that “the record was sufficient to review the claim.” (ECF No. 20 24-32 at 2.) The court did note Petitioner was charged with conspiracy to commit murder 21 whereas Linda Fields was not. (Id. at 3 n.1.) On direct appeal, the Nevada Supreme Court 22 found the Mobert evidence “had relevance to knowledge and intent,” in addition to motive 23 and identity, and “tended to show [Petitioner] was not an innocent bystander to Linda 24 [Field]’s alleged murderous scheme, as he claimed.” (ECF No. 24-8 at 9.) The court found 25 the state district court did not abuse its discretion in its determination that the risk of unfair 26 prejudice did not substantially outweigh the Mobert evidence’s probative value, 27

28 3The Court does not reach the performance prong of Strickland here because it decides the case instead on the prejudice prong. See Strickland,

. 2 murder.” (ECF No. 24-8 at 12.) The Nevada Supreme Court reasonably determined 3 Petitioner would not have prevailed on appeal if Petitioner’s appellate counsel submitted 4 the Mobert evidence in the record on appeal because the evidence was admissible as 5 evidence of motive, intent, knowledge, and identity, and that the risk of unfair prejudice 6 did not substantially outweigh its probative value in light of Petitioner’s conspiracy to 7 commit murder charge. 8 In addition, the Nevada Supreme Court “reject[ed Petitioner’s] suggestion that he 9 was prejudiced per se because his wife included the exhibits in her appeal and obtained 10 relief on a similar issue.” (ECF No. 24-32 at 2.) The United States Supreme Court held 11 that presuming prejudice with respect to an ineffective-assistance-of-counsel claim is 12 warranted when “counsel failed to function in any meaningful sense as the Government’s 13 adversary.” United States v. Cronic,

(1984). The Court has presumed 14 prejudice on appeal only in a limited number of situations: (1) when a defendant is denied 15 appellate counsel; and (2) when appellate counsel fails to file a notice of appeal. See Roe 16 v. Flores-Ortega,

(2000); Garza v. Idaho,

, 749-50 17 (2019). Petitioner was not denied appellate counsel and an appeal was litigated on 18 Petitioner’s behalf. Therefore, the Nevada Supreme Court’s determination Petitioner 19 failed to demonstrate prejudice per se was not an objectively unreasonable application of 20 clearly established federal law. 21 Because the Nevada Supreme Court’s denial of Petitioner’s ineffective-assistance- 22 of-appellate-counsel claim was neither contrary to, nor an objectively unreasonable 23 application of, clearly established federal law, the Court denies Petitioner federal habeas 24 relief. 25 The Court would reach the same result on the prejudice prong of Strickland on de 26 novo review for the following reasons. Petitioner and Linda Fields were tried separately 27 with differing defenses and theories, which led to the prior bad acts evidence being 28 presented for different purposes in the separate trials. Petitioner defended himself on the 2 another individual, acting with Linda Fields committed the murder. (ECF No. 24-8 at 4.) 3 Petitioner maintained he did not know about the alleged scheme to murder Palensky. (Id.) 4 As such, the State offered the Mobert evidence to show financial motive, intent, 5 knowledge, and identity. (Id. at 6.) At Linda Fields’ trial, however, the State offered the 6 Mobert evidence to show proof of financial motive because it showed Linda Fields’ 7 involvement in a prior murder solicitation was also financially motivated. (ECF No. 31-28 8 at 9.) Therefore, the Mobert evidence had additional relevance in Petitioner’s trial than in 9 Linda Fields’ trial. 10 In addition, at Linda Fields’ trial, the State presented an alternative motivation 11 theory that Linda Fields killed Palensky for molesting her grandson. (ECF No. 31-28 at 12 10.) The Nevada Supreme Court found this alternative theory was “not at all in line with 13 the State’s theory of relevancy with respect to evidence of the Mobert conspiracy – that 14 the Fieldses took advantage of elderly victims by changing their wills and then hiring an 15 outsider to kill them.” (Id. at 10-11.) The court found the Mobert evidence was more 16 prejudicial than probative “and it led to serious jury confusion since the State also argued 17 [Linda Fields’] motive was based upon the alleged molestation.” (Id. at 12.) In contrast, at 18 Petitioner’s trial, the State theorized Linda Fields’ statements that Palensky and Mobert 19 were child molesters were false accusations to “discredit and devalue” the murder targets. 20 Fields, 220 P.3d. at 715 n.3. Therefore, at Petitioner’s trial, the State presented the 21 evidence regarding molestation accusations in a manner that was not inconsistent with 22 the murder for financial gain conspiracy theories. 23 Furthermore, the State referred to and used the Mobert evidence more extensively 24 at Linda Fields’ trial. The Nevada Supreme Court noted that at Petitioner’s trial, the State 25 “made minimal mention of the Mobert evidence, addressing it once, briefly, in regard to 26 the Fieldses’ financial straits and the financial motive,” as well as “a second time 27 addressing the conspiracy charge against [Petitioner.]” (ECF No. 24-8 at 12.) At Linda 28 Fields’ trial, the state district court noted that “[t]he State spent considerable time playing 1 || excerpts of the recordings” and “continually referenced the Mobert conspiracy during its 2 || closing argument, while also arguing that [Linda Fields] murdered Palensky for molesting 3 || her grandson.” (ECF No. 31-28 at 12.) Because Petitioner and Linda Fields had separate 4 || trials that were different based on the presentation of evidence, arguments, and theories 5 || of the case, there were multiple substantial distinctions contributing to why the three-judge 6 || panel in Linda Fields’ appeal reached a different conclusion on the prior bad acts evidence 7 || than the en banc decision reached in affirming Petitioner's conviction. Therefore, in the 8 || alternative, the Court on de novo review would reach the same result. V. CERTIFICATE OF APPEALABILITY 10 This is a final order adverse to Petitioner. Rule 11 of the Rules Governing Section 11 || 2254 Cases requires the Court to issue or deny a certificate of appealability (“COA”). 12 || Therefore, the Court has sua sponte evaluated the claims within the Petition for suitability 13 || for the issuance of a COA. See

(c); Turner v. Calderon,

, 14 || 864-65 (9th Cir. 2002). Under

(c)(2), a COA may issue only when the 15 || petitioner “has made a substantial showing of the denial of a constitutional right.” With 16 || respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable 17 || jurists would find the district court's assessment of the constitutional claims debatable or 18 || wrong.” Slack v. McDaniel,

(2000) (citing Barefoot v. Estelle,

|| 880, 893 n.4 (1983)). Applying this standard, the Court finds a certificate of appealability 20 || is unwarranted. 21 || VI. CONCLUSION 22 It is therefore ordered that Petitioner’s writ of habeas corpus (ECF No. 15) is 23 || denied. 24 It is further ordered that Petitioner is denied a certificate of appealability. 25 The Clerk of Court is directed to enter judgment accordingly and close this case. 26 DATED THIS 2"¢ Day of November 2020. 27 {Gin 28 sRENGR BO CHIEF UNITED STATES DISTRICT JUDGE 11