1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Demain Dominguez, aka Demian Dominguez, Case No.: 2:12-cv-01608-JAD-DJA 4 Petitioner 5 v. OrderDenying Petition for Habeas Reliefand Brian E. Williams, et al., Closing Case Defendants Petitioner DemainDominguez was found guilty of robbery, burglary, conspiracy to commit robbery, first-degree murder, conspiracy to commit murder, conspiracy to commit a crime, and two use-of-deadly-weapon enhancements in Nevada State Court and sentenced to multiple, consecutive 20-years-to-life sentences.1 In a six-count petition, Dominguez seeks a writ of habeas corpus under 28 U.S.C. § 2254 based on claims of insufficient evidence and ineffectivetrial counsel.2 I now address these claims on their merits. Because I find that habeas relief is not warranted, I deny Dominguez’s petition, deny him a certificate of appealability, and

close this case. Background A. The facts underlying Dominguez’s conviction3 On January 30, 2007, at 3:39 a.m., Mark Friedman called 9-1-1, reporting that he had been attacked and robbed by numerous individuals upon entering his home. Friedman’s

1 ECF No. 23-12. 22 2 ECF No. 61. 3 These facts are taken from Detective Dolphis Boucher’s and Dr.Gary Telgenhoff’s trial 23 testimonies. ECF Nos. 23, 23-4. For simplicity’s sake, I cite to these exhibits generally for this entire background section. girlfriend, Lilani Tomines, was allegedly asleep in the home when the attackoccurred. Friedman was stabbed three times in the abdomen and kicked repeatedly in the head. He was taken to the hospital where an exploratory laparotomy was done to determine whether any of his vital organs had been injured. Friedman aspirated vomit during the procedure, which resulted in him fatally suffering from asphyxiation due to pneumonia several days later.

Tomines’s telephone records revealed that she called Dominguez three times on the night of Friedman’s attack. Dominguez originally deniedbeing present at the attack and minimized his relationship with Tomines. Helater admitted to being present at the attack, but he claimed that he was there only to speak with Friedman and attempted to defend him during the attack. Dominguez and his brother, whose fingerprint was found at the scene, were both arrested. Tomines was also arrested after it was determined that she owed Friedman a substantial sum of money and fraudulently attempted to cash Friedman’s checks. B. Procedural history On July 13, 2009, ajury found Dominguez guilty of conspiracy to commit robbery,

conspiracy to commit murder, conspiracy to commit a crime, burglary, robbery with the use of a deadly weapon, and first-degree murder with the use of a deadly weapon.4 Dominguez appealed, and the Nevada Supreme Court affirmed on December 10, 2010.5 Remittitur issued on January 4, 2011.6 Approximately eight months later, Dominguez filed a state habeas petition.7 The state

4 ECF No.23-3. 22 5 ECF No. 23-21. 23 6 ECF No. 23-22. 7 ECF No. 24. district court denied the petition, and Dominguez appealed.8 While his appeal was pending, Dominguez filed a second state habeas petition, which the state district court also denied.9 On July 25, 2012, the Nevada Supreme Court affirmed the denial of Dominguez’s first state habeas petition, and remittitur issued on August 20, 2012.10 Approximately six months later, the Nevada Supreme Court affirmed the denial of his second state habeas petition as

procedurally barred.11 Dominguez dispatched his federal habeas petition for filing on or about September 6, 2012.12 Dominguez filed a counseled, amended petition on September 26, 2013.13 He then moved for leave to conduct discovery and for a court order to obtain documents, and the respondents moved to dismiss Dominguez’s amended petition.14 I denied the respondents’ motion to dismiss without prejudice and granted Dominguez’s motion for leave to conduct discovery.15 Following the completion of discovery, Dominguez filed a third state habeas petition, which was denied as untimely, successive, and procedurally barred by the state district court.16

The Nevada Supreme Court affirmed the denial,17 and remittitur issued on July 19, 2016.18

8 ECF Nos. 24-4, 24-6. 17 9 ECF Nos. 24-10, 24-15. 18 10 ECF Nos. 24-23, 24-24. 11 ECF No. 24-25. 19 12 ECF No. 1. 20 13 ECF No. 18. 21 14 ECF Nos. 26, 27. 15 ECF No. 37 at 6. 22 16 ECF Nos. 59-1, 59-8. 23 17 ECF No. 59-13. 18 ECF No. 59-15. After seeking leave, Dominguez filed a counseled, second-amended federal petition and then a third-amended federal petition.19 The respondents again moved for dismissal.20 I granted the motion to dismiss in part, dismissing Ground 6.21 The respondents answered the remaining grounds in Dominguez’s third-amended petition on May 16, 2018,22 and Dominguez replied on November 28, 2018.23

In Dominguez’s remaining grounds for relief, he alleges the following violations of his federal constitutional rights:

1. The evidence at trial was insufficient to support his convictions. 9 2. Trial counsel failed to move to dismiss the murder and conspiracy to commit murder charges. 10 3. Trial counsel failed to investigate the State’s witnesses. 11 4. Trial counsel failed to object to the reasonable-doubt jury instruction 12 5. There were cumulative errors made by his trial counsel warranting relief.24

Discussion A. Legal standards 1. Review under the Antiterrorism and Effective Death Penalty Act (AEDPA) If a state court has adjudicated a habeas corpus claim on its merits, a federal district court may only grant habeas relief with respect to that claim if the state court’s adjudication “resulted

19 ECF Nos. 50, 61. 20 ECF No. 63. 21 ECF No. 70. 22 22 ECF No. 78. 23 23 ECF No. 85. 24 ECF No. 61. 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 “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.”25 A state court acts contrary to clearly established federal law if it applies a rule contradicting the relevant holdings or reaches a different conclusion on materially

indistinguishable facts.26 And a state court unreasonably applies clearly established federal law if it engages in an objectively unreasonable application of the correct governing legal rule to the facts at hand.27 Section 2254 does not, however, “require state courts to extend” Supreme Court precedent “to a new context where it should apply” or “license federal courts to treat the failure to do so as error.”28 The “objectively unreasonable” standard is difficult to satisfy;29 “even ‘clear error’ will not suffice.”30 Habeas relief may only be granted if “there is no possibility [that] fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.”31 As “a condition for obtaining habeas relief,” a petitioner must show that the state-court decision

“was so lacking in justification that there was an error well understood and comprehended in 25 28 U.S.C. § 2254(d). 26 Price v. Vincent, 538 U.S. 634, 640 (2003). 19 27 White v. Woodall, 134 S. Ct. 1697, 1705–07 (2014). 20 28 Id.at 1705–06. 21 29 Metrishv. Lancaster, 569 U.S. 351, 357–58 (2013). 30 Wood v. McDonald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (citation omitted); see also 22 Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question . . . is not whether a federal court believes the state court’s determination was incorrect but whether that determination was 23 unreasonable—a substantially higher threshold.”). 31 Harrington v. Richter, 562 U.S. 86, 102 (2011). existing law beyond any possibility of fairminded disagreement.”32 “[S]o long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision,” habeas relief under Section 2254(d) is precluded.33 AEDPA “thus imposes a ‘highly deferential standard for evaluating state-court ruling,’ . . . and ‘demands that state-court decisions be given the benefit of the doubt.’”34

If a federal district court finds that the state court committed an error under § 2254, the district court must then review the claim de novo.35 The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief,36 but state-court factual findings are presumed correct unless rebutted by clear and convincing evidence.37 2. Standard for federal habeas review of an ineffective-assistance claim The right to counsel embodied in the Sixth Amendment provides “theright to the effective assistance of counsel.”38 Counsel can “deprive a defendant of the right to effective assistance[] simply by failing to render ‘adequate legal assistance[.]’”39 In the hallmark case of Strickland v. Washington, the United States Supreme Court held that an ineffective-assistance claim requires a petitioner to show that: (1) his counsel’s representation fell below an objective

32 Id.at 103. 18 33 Id.at 101. 34 Renico v. Lett, 559 U.S. 766, 773 (2010) (citations omitted). 19 35 Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (enbanc) (“[I]t is now clear both that we 20 may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”). 21 36 Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 22 37 28 U.S.C. § 2254(e)(1). 38 Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 23 U.S. 759, 771 n.14 (1970)). 39 Id.(quoting Cuyler v. Sullivan, 446 U.S. 335, 335–36 (1980)). standard of reasonableness under prevailing professional norms in light of all of the circumstances of the particular case;40 and (2) it is reasonably probable that, but for counsel’s errors, the result of the proceeding would have been different.41 A reasonable probability is “probability sufficient to undermine confidence in the outcome.”42 Any review of the attorney’s performance must be “highly deferential” and must

adopt counsel’s perspective at the time of the challenged conduct so as to avoid the distorting effects of hindsight.43 “The question is whether an attorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practice or most common custom.”44 The burden is on the petitioner to overcome the presumption that counsel made sound trial-strategy decisions.45 The United States Supreme Court has described federal review of a state supreme court’s decision on an ineffective-assistance claim as “doubly deferential.”46 So, I “take a ‘highly deferential’ look at counsel’s performance . . . through the ‘deferential lens of § 2254(d).’”47 And I consider onlythe record that was before the state court that adjudicated the claim on its merits.48

40 Id.at 690. 41 Id. at 694. 19 42 Williams v. Taylor, 529 U.S. 362, 390–91 (2000). 20 43 Strickland, 466 U.S. at 689. 21 44 Harrington, 562 U.S. at 104. 45 Id. 22 46 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). 23 47 Id. 48 Id.at 181–84. B. Evaluating Dominguez’s remaining claims Dominguez asserts that there was insufficient evidence to support his convictions and his trial counsel was ineffective. I now address these claims in the order in which they were made.49 1. Ground 1 In Ground 1, Dominguez asserts that he was denied his due-process rights under the Fifth

and Fourteenth Amendments because the evidence at his trial was legally insufficient to support his murder, robbery, and conspiracy-to-commit-robbery convictions.50 Dominguez contends with regard to the murder convictionthat Friedman’s surgery was an intervening event that proximately caused his death—not thestabbing—and that, with regard to the conspiracy conviction, the evidence was far more consistent with an agreement to physically attack

49 Dominguez argues that his claims should be reviewed de novo because 28 U.S.C.§2254(d) is 14 unconstitutional. ECF No. 85 at 15–21. Dominguez argues that: (1) 28 U.S.C.§2254(d) “violates § 1 of the Fourteenth Amendment and the Due Process Clause of the Fifth 15 Amendment[]by depriving citizens in state custody of their fundamental right to meaningful federal review of the federal legality of their state detention”; (2) 28 U.S.C.§2254(d) 16 “unlawfully suspends the writ of habeas corpus in violation of Article I, § 9, cl. 2”; and (3) 28 U.S.C. §2254(d)“unlawfully impinge[s] on the judicial power vested exclusively in the 17 judiciary by Article III of the Constitution.” Id.at 15. Headmits that his latter two arguments have been rejected by the Ninth Circuit, id. at 16 (citing Crater v. Galaza, 491 F.3d 1119 (9th 18 Cir. 2007)), so I decline to consider them because I am bound by that authority. With regard to his first argument—that 28 U.S.C.§2254(d)violates the Fourteenth and Fifth Amendments— 19 Dominguez argues that 28 U.S.C.§2254(d)requires federal courts to defer to the state court’s interpretation of federal law, meaning that in cases in which a state imprisonment violates the 20 federal constitution, the federal court is often required to “stay its hand and deny relief.” Id.at 20. I find that this argument lacks merit. Although not discussed in the context of the 21 Fourteenth and Fifth Amendments, the Ninth Circuit has stated generally that “[t]he constitutional foundation of § 2254(d)(1) is solidified by the Supreme Court’s repeated 22 application of the statute.” Crater, 491 F.3d at 1129. Further, none of Dominguez’s claims violate the federal constitution; therefore, Dominguez is not being denied relief solely due to the 23 deference that is given to the state court under 28 U.S.C.§2254(d). 50 ECFNo. 61 at 9. 1 Friedman than to rob him.51 The Nevada Supreme Court rejected these theories in Dominguez’s 2 appeal of his judgment of convictionbased onthe evidence: 3 First, Dominguez argues that his murder conviction must be reversed because the victim died of intervening medical error, not 4 of the stab wounds that placed him in the hospital. We reject that contention. The victim reported inhis 9-1-1 call that he had been 5 attacked by a group of individuals who were waiting for him inside when he returned home. Dominguez admitted to being part of that 6 group, though he asserted that he was there to talk to the victim and protect him from the other three attackers who stabbed him, 7 one of whom was Dominguez’s brother. The victim died after exploratory surgery. A medical examiner testified that the victim’s 8 cause and manner of death were homicide due to multiple stab wounds. We conclude that because these injuries were a 9 “substantial factor” in the victim’s death, Dominguez cannot escape liability for murder. Lay v. State, 110 Nev. 1189, 1192–93, 10 886 P.2d 448, 450 (1994). 11 Second, Dominguez claims that there is insufficient evidence to support his convictions for robbery with the use of a deadly 12 weapon and conspiracy to commit robbery. The jury heard evidence that Dominguez conspired with the victim’s girlfriend, 13 Liliani Tomines, to murder the victim, including (1) their initial denials that they knew each other; (2) their subsequent 14 confrontation with 112 phone calls made between them in a period of a few weeks, including on the night of the murder; (3) evidence 15 that Tomines let the group that attacked the victim into the house for the purpose of lying in wait for the victim; (4) Dominguez’s 16 admission of involvement; and (5) the victim’s exclamation that the group that attacked him had stolen his wallet. A rational juror, 17 looking at Tomines’[s]and Dominguez’s coordinated conduct, could have inferred the existence of an agreement to rob the victim 18 as part of the plan to murder him and could have therefore found beyond a reasonable doubt that Dominguez conspired to commit, 19 and did in fact commit, robbery with the use of a deadly weapon. See Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 20 1380 (1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979); NRS 200.380(1); NRS 193.165; NRS 199.480. Further, we reject 21 Dominguez’s assertion that because his brother, a co-conspirator tried separately, was acquitted of robberyand conspiracy to 22 commit robbery, Dominguez’s convictions must be reversed as 23 51 Id.at 11, 13. 1 well. See Hilt v. State, 91 Nev. 654, 662, 541 P.2d 645, 650 (1975).52

I find that this ruling of the Nevada Supreme Court was reasonable.53 “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”54 A federal habeas petitioner “faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”55 As the United States Supreme Court held in Jackson v. Virginia, ondirect review of a sufficiency-of-the-evidence claim, a state court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”56 The evidence must be viewed “in the light most favorable to the prosecution.”57 Federal habeas relief is available only if the state-court determination that

52 ECF No. 23-21 at 2–3. 15 53 Dominguez argues that I should review this ground de novo because the Nevada Supreme 16 Court erroneously determined that Friedman’s injuries were a “substantial factor” in his death and failed to discuss whether the state adduced sufficient evidence at trial to allow any rational 17 juror to find causation beyond a reasonable doubt. ECF No. 85 at 29-30.Dominguez’s first assertion lacks merit—as I will discuss, the Nevada Supreme Court did not erroneously 18 determine that Friedman’s injuries were a “substantial factor” in his death. Regarding Dominguez’s second assertion, it is true that the Nevada Supreme Court only cited Jackson v. 19 Virginia, 443 U.S. 307, 319 (1979), which discusses reasonable doubt in sufficiency-of-the- evidence claims in the context of Dominguez’s robbery and conspiracy to commit robbery 20 convictions. However, that does not imply that the Nevada Supreme Court failed to apply this standard to the evidence presented on the murder conviction. So Idecline to review Ground 1 de 21 novo. 54 In re Winship, 397 U.S. 358, 364 (1970). 22 55 Juan H.v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). 23 56 Jackson v. Virginia, 443 U.S. 307, 319 (1979). 57 See id. the evidence was sufficient to support a conviction was an “objectively unreasonable” application of Jackson.58 a. Relevant evidence Brian Ward, a coworker of Mark Friedman, testified that Friedman gave him a ride home from work on January 30, 2007, at approximately 3:10 a.m.59 When Ward opened Friedman’s

truck’s passenger door to get into the vehicle, Friedman was talking on his cell phone, and Ward heard Friedman say, “‘I’ll be home in 30 minutes. Stop calling me.’”60 It was later determined that Friedman was speaking to his girlfriend and business partner, Lilani Tomines, during that telephone call.61 Approximately thirty minutes later, Friedman made a telephone call to 9-1-1,explaining that, after coming home from work, numerous individuals, who Friedman described as being Hispanic, “hit [him] when [he] came in thedoor.”62 Friedman also explained that the individuals kicked him in the “head like seven or eight times,” took his “wallet and [his] phone and everything,” and then “put [him] in the garage.”63 During Friedman’s 9-1-1 telephone call,

Tomines came into the garage and indicated that she had been sleeping and was unaware of what had happened to Friedman.64

58 See Juan H., 408 F.3d at 1275 n.13. 20 59 ECF No. 22-3 at 55, 58. 21 60 Id.at 59. 61 ECF No. 23 at 78. 22 62 ECF No. 23 at 60, 63. 23 63 Id. 64 Id.at 62, 67. Officer Garth Findley testified that he was the first officer to respond to a dispatch call for a robbery at Friedmann’s residence at 3:47 a.m. on January 30, 2007.65 When Officer Findley approached the house, he saw Friedman sitting in a chair in his garage with Tomines standing next to him.66 Friedman “had blood all over him” and told Officer Findley, consistent with his 9-1-1 call, that he “parked his truck on the street, walked . . . through the garage[,] . . .

and once he entered . . . the door that leads into the house, . . . he was jumped by . . . approximately five Hispanic males and one Hispanic female.”67 Friedman also explained that the individuals “beat him with an unknown object and . . . robbed him, taking his keys and wallet.”68 The paramedics arrived approximately five minutes after Officer Findley, and Officer Findley did not render any first aidin the meantime.69 Officer Findley spoke with Tomines briefly, and Tomines explained that she arrived at Friedman’s house at approximately 1:00 a.m.on January 30, 2007, and went to sleep.70 Tomines then explained—inconsistent with what was heard on the 9-1-1 recording—that she awoke at approximately 3:30 a.m., and when she noticed that Friedman was not home, she called his

cellular telephone.71 Friedman “answered his cell phone and stated that he[ was] already home, 65 ECF No. 22-3 at 37–39. 20 66 Id.at 41–42, 47. 21 67 Id.at 43–44. 68 Id.at 44. 22 69 Id.at 53. 23 70 Id.at 46. 71 Id.at 47. he [was] in the hallway, and that’s when she went out and saw him.”72 Friedman then told Tomines that he had been jumped by individuals who possibly followed him home.73 Louise Renhard, a senior crime-scene analyst, testified that she also responded to Friedman’s residence on January 30, 2007.74 Renhard testified that the front door of the residence was opened inward, that the “metal grated security door on the exterior” of the front

door was double locked, that the door from the inside of the garage into the laundry room area of the residence was shut but not locked, and that except for the “garage bay door[,] . . . all the rest of the [doors and windows] were secured, closed and locked.”75 Renhard explained that there was no sign of forced entry anywhere in the residence.76 Although Friedman told the 9-1-1 operator that the individuals had taken his keys, Renhard found Friedman’s keys in his shirt pocket.77 She, however, did not recover his wallet.78 Renhard testified that she “believed from what [she] w[as] told by medical personnel that the victim was going to live.”79 Detective Gordon Martines, a robbery detective, testified that he too responded to Friedman’s residence on January 30, 2007.80 Detective Martines also did not see any signs of forced entry anywhere in the residence,and he testified that the interior of the residence “didn’t

72 Id. 73 Id. 19 74 ECF No. 22-4 at 22, 24. 20 75 Id.at 34-36. 21 76 Id.at 37. 77 Id.at 74. 22 78 Id.at 75. 23 79 Id. 80 ECF No. 22-4 at 79–80. appear to be disturbed in any way.”81 Detective Martines interviewed Tomines at the scene and testified that “she wasn’t all that upset about what had happened” and “appeared to be rather detached and cold toward the circumstances that had occurred.”82 Detective Martines did not interview Friedman because he was in surgery and then later passed away.83 Detective Martines explained that Friedman’s injuries were “a little excessive” for a robbery.84

Dr. Gary Telgenhoff, a medical examiner with the Clark County Coroner’s Office, testified that while Dr. Kubiczek performed Friedman’s autopsy, he conducted an autopsy report of Friedman, which included reviewing Friedman’s hospital medical reports.85 Friedman was stabbed three times “in the vicinity of the abdomen,” had blunt force trauma injuries to his head, had defensive wounds on his hands, and was in the hospital for nine days prior to his death.86 After Friedman’s admission to the hospital, surgeons did “an exploratorylaparotomy where they want to look and make sure no vital organs have been pierced by whatever caused the stabs.”87 The laparotomy, which Dr. Telgenhoff clarified “wasn’t an elective surgery,” showed “no direct internal injury, but [the procedure was needed] to be sure.”88 Dr. Telgenhoff explained that

“because [Friedman] was not ideal for a surgical candidate,” he “had some episodes of throwing

81 Id.at 81. 19 82 Id.at 84. 20 83 Id.at 88. 21 84 Id.at 89. 85 ECF No. 23 at 6, 10, 12. 22 86 Id.at 10, 18, 24. 23 87 Id.at 11. 88 Id. up, vomiting” during the procedure.89 Friedman ultimately fatally suffered from asphyxiation from aspiration pneumonia, which is a risk faced by anyone who gets a tracheotomy.90 Dr. Telgenhoff then testified extensively about the cause of Friedman’s death. Dr. Telgenhoff explainedthat,in his opinion, Friedman aspirated and died “from complications of treatment for those stab wounds.”91 Dr. Telgenhoff further explained that “[t]he proximal cause

of death, the cause that brought him to his death[,was] multiple sharp force injuries due to assault.”92 Dr. Telgenhoff testified that the medical definition of “proximate causation” means “the underlying condition, the underlying episode that brought about the death.”93 Dr. Telgenhoff determined that the manner of death was a homicide because, “but for being assaulted[, Friedman] wouldn’t have been at the hospital and died in the manner he did.”94 Dr. Telgenhoff then clarified: one could easily say that, well, pneumonia killed him, and ignore the rest. That wouldn’t be quite accurate. One could say that the 13 stab wounds killed him, but we know that they weren’t themselves lethal, so that wouldn’t be quite correct. But the underlying 14 process leading to the death was the attack and that’s all there is to it, the way I see it.95 15 16 Dr. Telgenhoff did concede that “[i]f it were not for the need for emergent surgery and the 17 complications from that emergent surgery, [Friedman] might have lived.”96 18 89 Id.at 11–12. 19 90 Id.at 28, 36. 20 91 Id.at 12. 21 92 Id.at 28. 93 Id.at 35. 22 94 Id.at 28. 23 95 Id.at 35. 96 Id.at 29. Detective Dolphis Boucher, a homicide detective, testified that he took over the investigation following Friedman’s death “because his death was a result of the injuries.”97 Detective Boucher went to Friedman’s residence on February 11, 2007,to observe the crime scene.98 Based on the blood and other evidence, Detective Boucher explained that Friedman was attacked in the laundry room, just inside from the garage, and that the attackers likely left the

residence through the front door, not the garage, meaningthat someone locked the door from the inside after they left.99 After investigating Tomines’stelephone records, Detective Boucher learned that Tomines had spoken with Dominguez on the telephone at least three times on the night of Friedman’s attack: 9:00 p.m. on January 29, 2007; 12:26 a.m. on January 30, 2007; and 2:10 a.m. on January 30, 2007.100 According to cell-tower records, Dominguez was near his home during these first two telephone calls but was near Friedman’s home during the final call.101 Tomines also spoke with Dominguez at around 9:30 a.m. on January 30, 2007.102 Detective Boucher explained that Tomines’s telephone records established 112 telephone calls between Tomines and Dominguez

from December 19, 2006,to February 1, 2007.103 Detective Boucher testified that a ledger was found on Friedman’s computer showing that Tomines owed him approximately $200,000.104 Because this amount was not secured by a

97 ECF No. 23 at 37–39. 19 98 Id.at 42. 20 99 Id.at 48–51. 21 100 Id.at 81–83. 101 Id.at 89. 22 102 Id.at 84, 91. 23 103 Id.at 93. 104 ECF No. 23-4 at 51, 54. formal loan, meaning that there would be no evidence that Tomines owed these amounts, Detective Boucher testified about a possible motive for Tomines to have been involved in Friedman’s attack: “[i]f he’s dead, she doesn’t have to pay him back.”105 When Detective Boucher interviewed Tomines and asked her whether she owed Friedman money, she responded, “[n]ot really, not a lot of money.”106 Detective Boucher also testified that Tomines wrote

fraudulent checks from Friedman’s account, forging his signature, and attempted to cash those checks the afternoon of January 29, 2007, and the afternoon of January 30, 2007.107 Detective Boucher further explained that “there was a [notarized] document in [Friedman’s] safety deposit box” that showed that “he was a part owner of [Tomines’] business.”108 Tomines denied that she and Friedman were partners, claiming that she solely owned her used-car business.109 Detective Boucher interviewed Dominguez about his involvement in the events that took place on January 30, 2007.110 Dominguez said that he and a lifelong friend, Saul, whose last name and telephone number were unknown to Dominguez, were trying to buy a car from Tomines.111 Dominguez stated that he only talked to Tomines two or three times and that Saul

must have had his cellular telephone on the night that Friedman got stabbed.112 Later, after Dominguez was arrested, Boucher conducted a second interview with him113 in which

105 Id.at 54, 72. 18 106 ECF No. 23 at 98–99, 111. 19 107 Id.at 93-95. 20 108 ECF No. 23-4 at 71. 109 ECF No. 23 at 111–12, 134. 21 110 Id.at 139–40. 22 111 Id.at 142–43. 112 Id.at 144. 23 113 Dominguez asserts that his police-interview statements were involuntary becausethe detectives admittedly made fraudulent statements to him in order to pressure him into confessing, Dominguez admitted that he was at Friedman’s house the night Friedman was attacked; however, Dominguez explained that “he was sort [of] blocking Mr. Friedman from the other attackers, and he was tryingto prevent him from getting hurt.”114 Dominguez further explained that he was at Friedman’s residence at 3:30 a.m. on January 30, 2007,because he “was supposed to go there to talk to” Friedman on Tomines’s behalf.115 Dominguez elaborated that Friedman “was being

mean to [Tomines], and she was going to give him a deal on a car.”116 Dominguez also explained that Tomines had told him that she had problems with Friedman: “This guy have my truck, this guy live in my home and, and no pay me nothing.”117 Aaron Friedman, Friedman’s son, testified that his father’s wallet was never found.118 Similarly, Detective Boucher testified that Friedman’s wallet was never locatedand there was no activity on Friedman’s credit cards.119

soI should not consider them in my analysis of Ground 1. SeeECF No. 61 at 13. Even if testimony has been admitted in error, however—whichdoes not appear to be the case here—the 18 Jackson analysis must be applied to all the evidence actually admitted by the state district court. McDaniel v. Brown, 558 U.S. 120, 131 (2010) (explaining that “a reviewing court must consider 19 all of the evidence admitted by the trial court, regardless of whether the evidence was admitted erroneously” (internal quotation marks omitted)). 20 114 ECF No. 23-4 at 9. 21 115 Id.at 12–13. 116 Id.at 47. 22 117 ECF No. 20 at 17. 23 118 ECF No. 22-4 at 108. 119 ECF No. 23 at 55–56. Dominguez’s brother, Ivan Dominguez,120 was later arrested after his fingerprint was matched to a print found at Friedman’s residence.121 b. Relevant statutes and legal theories Dominguez only disputes the sufficiency of the evidence related to his first-murder, conspiracy to commit robbery, and robbery convictions.122 Sufficiency-of-the-evidence claims

are judged by the elements defined by state law.123 Nevada law defines murder as “the unlawful killing of a human being . . . [w]ith malice aforethought, either express or implied.”124 As it relates to the facts of this case, first-degree murder is murder that is “(a) [p]erpetrated by means ofpoison, lying in wait or torture, or by any other kind of willful, deliberate and premeditated killing” or “(b) [c]ommitted in the perpetration or attempted perpetration of . . . robbery, burglary, [or] invasion of the home.”125 Nevada law defined robbery as “the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property.”126 “A taking is by means of force or fear if forceor fear is used to: (a) Obtain or retain possession of the property; (b) Prevent or overcome resistance to the taking; or (c) Facilitate escape.”127

120 Dominguez notes that IvanDominguez was acquitted of robbery and conspiracy to commit 17 robbery. ECF No. 61 at 14 (citing ECF No. 23-17). Because inconsistent jury verdicts do not render them erroneous, I note this fact but decline to grant Dominguez relief on this fact alone. 18 Standefer v. United States, 447 U.S.10, 25(1980) (“While symmetry of results may be intellectually satisfying, it is not required.”). 19 121 ECF No. 23-4 at 19–20, 22. 20 122 ECF No. 61 at 9. 21 123 Jackson, 443 U.S. at 324 n.16. 124 Nev. Rev. Stat. § 200.010(1). 22 125 Nev. Rev. Stat. § 200.030(1)(a), (b). 23 126 Nev. Rev. Stat. § 200.380(1). 127 Id. Regarding conspiracy, Nevada law provides that “whenever two or more persons conspire to commit . . . robbery . . . each person is guilty of a category B felony.”128 The jury was instructed that they could find Dominguez guilty of robbery and murder under one of three theories of liability: Dominguez directly committed the crime; Dominguez and Tomines aided and abetted one another in the commission of the crime with the intent to

commit the crime; or Dominguez and Tomines engaged in a conspiracy to commit the crime.129 c. Challenged counts of conviction i. Murder Dominguez challenges the sufficiency of the evidence forhis first-degree murder conviction based on causationof Friedman’s death.130 The Nevada Supreme Court has explained that “a criminal defendant can only be exculpated where, due to a superseding cause, he was in no way the proximate cause of the result” and “[a]ny intervening cause must, effectively, break the chain of causation.”131 “Thus, an intervening cause must be a superseding cause, or the sole cause of the injury in order to completely excuse the prior act.”132 In Lay v.

State,the Nevada Supreme Court heldthat “[a] defendant will not be relieved of criminal liability for murder when his action was a substantial factor in bringing about the death of the victim.”133 Explaining this rule in the context of Lay, theCourt statedthat “[e]ven if the direct

128 Nev. Rev. Stat. § 199.480(1). 20 129 ECF No. 23-2at 5–6. 21 130 ECF No. 61 at 11. 22 131 Etcheverry v. State,821 P.2d 350, 351 (Nev. 1991) (internal quotation marks and citations omitted). 23 132 Id. 133 Lay v. State,886 P.2d 448, 450 (Nev. 1994). cause of [the victim’s] death had been negligent medical care, the gunshot wound that necessitated the medical care was a substantial factor in bringing about [the victim’s] death.”134 Here, Dr. Telgenhoff testified that Friedman’s laparotomy was not elective—it was necessaryto ensurethat Friedman had not suffered any direct internal injuries.135 After the laparotomy, in which Friedman aspirated vomit, he died from what Dr. Telgenhoff testified were

“complications of treatment for [his] stab wounds.”136 Dr. Telegenhoff also testified that “the cause that brought him to his death [was] multiple sharp force injuries” and that “the underlying process leading to the death was the attack.”137 Accordingly, although Dr. Telgenhoff conceded that “[i]f it were not for the need for emergent surgery and the complications from that emergent surgery, [Friedman] might have lived,”138 the Nevada Supreme Court reasonably determined that the stabbing “was a substantial factor in bringing about the death of” Friedman.139 Indeed, similar to the facts in Lay, even though the direct cause of Friedman’s death was the complications he suffered as a result of the laparotomy, the stab wounds that necessitated that medical care were a substantial factor in bringing about his death.140

Outsidethe issue of causation, as the Nevada Supreme Court reasonably noted, Dominguez admitted to being present in Friedman’s residence when the attack took place.141 Dominguez asserted that he was only there to speak with Friedman and that he tried to protect

134 Id. 19 135 ECF No. 23 at 11. 20 136 Id.at 12. 21 137 Id.at 28, 35. 138 Id.at 29. 22 139 Lay,886 P.2d at 450. 23 140 Id. 141 ECF No. 23-4 at 9. Friedman from the attackers, one of whom was Dominguez’s brother.142 The jury disbelieved this explanation. Because evidence is viewed “in the light most favorable to the prosecution,”143 the evidence in this case shows that the murder of Friedman was either willful, deliberate, and premeditated, or committed in the perpetration of a robbery or home invasion.144 Therefore, based on this evidence, a rational trier of fact could have found beyond a reasonable doubt that

Dominguez—either directly or through aiding and abetting or through a conspiracy—committed first-degree murder, such that the Nevada Supreme Court’s ruling that there was sufficient evidence to convict Dominguez of murder was reasonable.145 ii. Robbery Friedman told the 9-1-1 operator that the individuals who attacked him took his wallet.146 Detective Boucher and Friedman’s son testified that Friedman’s wallet was never found.147 This evidence demonstrates that Dominguez, who admitted to being at Friedman’s residence during the attack, either directly or through aiding and abetting or through a conspiracy, unlawfully took Friedman’s personal property by means of violence against Friedman’s will.148 And based on this evidence, a rational trier of fact could have found beyond a reasonable doubt that

142 Id.at 9, 12–13, 19–20, 22. 143 Jackson, 443 U.S. at 319. 20 144 Nev. Rev. Stat. § 200.030(1)(a), (b). 21 145 In re Winship, 397 U.S. at 364; Juan H., 408 F.3d at 1274; Jackson, 443 U.S. at 319; Nev. Rev. Stat. § 200.030. 22 146 ECF No. 23 at 60, 63. 23 147 ECF Nos. 22-4 at 108; 23 at 55–56. 148 Nev. Rev. Stat. § 200.380(1). Dominguez committed robbery, makingthe Nevada Supreme Court’s ruling that there was sufficient evidence to convict Dominguez of robberyreasonable.149 iii. Conspiracy to commit robbery TheNevada Supreme Court has heldthat “conspiracy is committed upon reaching the unlawful agreement,”150 and“[c]onspiracy is seldom susceptible of direct proof and is usually

established by inference from theconduct of theparties.”151 Here, the evidence demonstrated that Tomines called Friedman on his way home from work to determine what time he would be home; that Tomines’s story to Officer Findley was inconsistent with the 9-1-1 tape recording in that she told Officer Findley that she saw and spoke with Friedman before he called 9-1-1; that there was no sign of forced entry into Friedman’s residence; that someone locked the front door from the inside after the attackers left; that Tomines spoke with Dominguez an aggregate of 112 times during the six weeks preceding the attack and robbery, including three times the night of the attack and robbery; and that Dominguez admittedthat he was at Friedman’s residence the night of the attack at the request of Tomines.152 This evidence, along with the evidence that

Friedman was robbed of his wallet, demonstrates that Dominguez and Tomines had an unlawful agreement to rob Friedman.153

149 In re Winship, 397 U.S. at 364; Juan H., 408 F.3d at 1274; Jackson, 443 U.S. at 319; Nev. Rev. Stat. § 200.380(1). 21 150 Nunnery v. EighthJudicial Dist. Ct.,186 P.3d 886, 888 (Nev. 2008). 22 151 Gaitor v. State,801 P.2d 1372, 1376 n.1 (1990) (internal quotation marks omitted), overruled on other grounds by Barone v. State,866 P.2d 291,292 (Nev. 1993). 23 152 ECF Nos. 22-3 at 47, 59; 22-4 at 37; 23 at 48–51, 62,67, 78, 81–83, 93; 23-4 at 9, 12–13. 153 Nunnery,186 P.3d at 888. Dominguez argues that any agreement established between him and Tomines was an agreement to physically attack Friedman, not to rob him.154 However, because Friedman’s wallet was taken with violence and because a conspiracy to rob can be inferred from the parties’ conduct,155 a rational trier of fact could have found beyond a reasonable doubt that Dominguez conspired to commit robbery. The Nevada Supreme Court’s ruling that there was sufficient

evidence to convict Dominguez of conspiracy to commit robbery was thus reasonable.156 Dominguez is denied federal habeasrelief for Ground One. 2. Ground 2 In Ground 2, Dominguez alleges that his federal constitutional rights were violated when his trial counsel failed to move to dismiss his murder and conspiracy-to-commit-murder changes because Friedman’s surgery was an intervening cause of his death.157 Dominguez elaborates that,because the coroner’s testimony and his autopsy report were unreliable, his trial counsel should have obtained the relevant medical records and consulted with an expert who could have definitively established that Friedman’s surgery was unnecessary, thus providing a basis for a motion to dismiss.158

154 ECF No. 61 at 13. 21 155 Gaitor,801 P.2d at 1376 n.1. 22 156 In re Winship, 397 U.S. at 364; Juan H., 408 F.3d at 1274; Jackson, 443 U.S. at 319; Nev. Rev. Stat. § 199.480(1). 23 157 ECF No. 61 at 16–17. 158 Id.at 18–19. 1 a. Ground 2 was not adjudicated on its merits in state court. 2 Dominguez included this claim in his first state habeas petition.159 In Dominguez’s 3 appeal of the denial of his first state habeas petition, the Nevada Supreme Court rejected this 4 claim becausehe could not establish prejudice: 5 [A]ppellant claimed that trial counsel was ineffective for failing to file a motion to dismiss counts 2 and 6. Appellant argued that he 6 could not be convicted of conspiracy to commit murder or murder based upon a “transferred intent” doctrine. Appellant failed to 7 demonstrate that his trial counsel’s performance was deficient or that he was prejudiced. Appellant misused the term “transferred 8 intent.” Appellant’s claim related to his belief that there was an intervening cause of death—pneumonia. Aclaim challenging 9 medical error as an intervening cause was raised and rejected on appeal. Dominguez v. State, Docket No. 55061 (Order of 10 Affirmance, December 10, 2010). Appellant cannot demonstrate prejudice for counsel’s failure to file a motion to dismiss based on 11 an intervening cause in this case. Therefore, we conclude that the district court did not err in denying this claim.160

Dominguez also included this claim in his second state habeas petition.161 The Nevada Supreme Court affirmed the denial of Dominguez’s second state habeas petition because it was untimely, successive, and procedurally barred.162 Dominguez again raised this claim in Ground 2 of his third state habeas petition.163 In Ground 2 of his third state habeas petition, unlike his previous two state habeas petitions, Dominguez discussed Dr. Bruce J. Hirschfeld’s review of Friedman’s autopsy report and Dr.

159 See ECF No. 24 at 7. 160 ECF No. 24-23 at 3. 22 161 See ECF No. 24-10 at 5. 23 162 ECF No. 24-25. 163 SeeECF No. 59-1 at 13. Hirschfeld’s opinion regarding Friedman’s cause of death.164 The Nevada Supreme Court affirmed the denial of Dominguez’s third state habeas petition because it was untimely and successive.165 The Nevada Supreme Court also explained that “appellant raised several of his claims on direct appeal or in a previous petition and they were rejected by this court on appeal. . . . Those claims are barred by the law-of-the-case doctrine and he has articulated no basis for

justifying further consideration of those claims.”166 I previously noted that the Nevada Supreme Court’s order affirming the denial of Dominguez’s third state habeas petition “did not ‘specify which claims were barred for which reasons.’”167 Dominguez asserts that this ground should be reviewed de novo because this new claim, with the addition of Dr. Hirschfeld’s report, has not been adjudicated on the merits by the Nevada Supreme Court.168 I agree. Dominguez’s third state habeas petition contained two reports by Dr. Hirschfeld.169 In his July 15, 2013,report, Dr. Hirschfeld noted that he reviewed Friedman’s autopsy report and Dr. Telgenhoff’s trial testimony.170 Dr. Hirschfeld concluded, based on his review of these documents, that “the autopsy findings in [sic] Mr. Friedman and trial testimony of Dr.

Telgenhoff provide a picture of an incomplete and inadequate clinical evaluation of the cause and effect of multiple stab wounds sustained by Mr. Friedman in his untimely death.”171 In his March 8,2015,report, Dr. Hirschfeld reported that, since his initial report was prepared, he had

164 See id.at 15–18. 19 165 ECF No. 59-13 at 2. 20 166 Id.at 2–3. 21 167 ECF No. 70 at 9 (citing Koerner v. Grigas, 328 F.3d 1039, 1053 (9thCir. 2003)). 168 ECF No. 85 at 51. 22 169 SeeECF Nos. 24-26, 57-1. 23 170 ECF No. 24-26 at 2. 171 Id.at 4. reviewed “the American Medical Response ambulance records (AMR), supplemented on paper, as well as 594 pages of medical records from University Medical Center (UMC)” regarding Friedman’s treatment.172 The review of these additional documents “confirm[ed] that Dr. Telgenhoff’s trial testimony was inaccurate, and failed to accurately document Mr. Friedman’s cause of death.”173

Dr. Hirschfeld explained that it was his medical opinion, stated to a reasonable degree of medical probability, that “the direct and primary cause of Mr. Friedman’s death was not an assault with sharp stab wounds penetrating injuries to the abdomen and right flank, which was only a proximate cause of his death because of the clinical nature in which he was treated.”174 Dr. Hirschfeld “question[ed] that if the jury had been educated about the true facts of Mr. Friedman’s medical course, complications, and alternatives to the treatment he received, . . . whether or not it would have had an impact on their decision.”175 In summary, Dr. Hirschfeld concluded, to a reasonable degree of medical probability that Friedmandied from his medical treatment, not his stab wounds:

the abdominal and right flank penetrating injuries he sustained were not life threatening at the time of his laparotomy, and would 16 never have become life threatening if treated in an alternative fashion . . . by closure of the abdominal fascial defect, local wound 17 care, with antibiotics, a CT scan of the abdomen and pelvis, and/or peritoneal lavage, with observation. Mr. Friedman, unfortunately, 18 died due to an aggressive approach to his injuries in a stable patient, with a stem-to-stern exploratory laparotomy done on an 19 emergency basis, and unfortunately complicated bynausea, severe vomiting, aspiration, cardiopulmonary arrest, and anoxic brain 20 injury. This series of circumstances could have been prevented; however, as stated before, my review of the medical records 21 172 ECF No. 57-1 at 2. 22 173 Id.at 10. 23 174 Id.at 11. 175 Id. 1 indicated that Mr. Friedman’s care, at all times, metappropriate and acceptable standards, and there was no evidence of negligence in his care or treatment.176 “A claim has not been fairly presented in state court if new factual allegations either ‘fundamentally alter the legal claim already considered by thestate courts,’ or ‘place the case in a significantly different and stronger evidentiary posture than it was when the state courts considered it.’”177 I find that this new evidence presented by Dominguez fundamentally altered the claim from its presentation in Dominguez’s first state habeas action. Dr. Hirschfeld’s report places the claim in a significantly different and stronger evidentiary posture than in state court, where Dominguez presented no evidence from outside the state-district-court record to support the claim.178 Therefore, Ground 2 is subject to the procedural-default doctrine and is barred by that doctrine179 unless Dominguez can overcome the procedural default. b. Ground 2is procedurally defaulted. In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails to comply with the state’s procedural requirements in presenting his claims is barred by the adequate and independent state-ground doctrine from obtaining a writ of habeas corpus in federal

176 Id.at 12. 177 Dickens v. Ryan, 740 F.3d 1302, 1318 (9thCir. 2014) (internal citation omitted) (quoting Vasquez v. Hillery, 474 U.S. 254, 260 (1986) and Aikenv. Spalding, 841 F.2d 881, 883 (9th Cir. 19 1988)). 178 See id.at 1319 (explaining that “the new evidence creates a mitigation case that bears little 20 resemblance to the naked Strickland claim raised before the state courts”). 179 See Nev. Rev. Stat. § 34.726, 34.800, 34.810; 28 U.S.C. § 2254(b)(1)(B)(i); Woodford v. Ngo, 21 548 U.S. 81, 92-93 (2006) (“[I]f state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, 22 those remedies are technically exhausted, . . . but exhaustion in this sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal court. Instead, if the petitioner 23 procedurally defaulted those claims, the prisoner generally is barred from asserting those claims in a federal habeas proceeding.”). court.180 Such a procedural default may be excused only if “a constitutional violation has probably resulted in the conviction of one who is actually innocent” or the prisoner demonstrates cause for the default and prejudice resulting from it.181 To demonstrate cause for a procedural default, the petitioner must “show that some objective factor external to the defense impeded” his efforts to comply with the state procedural rule.182 For cause to exist, the external

impediment must have prevented the petitioner from raising the claim.183 With respect to the prejudice prong,the petitioner bears “the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.”184 In Martinez v. Ryan, the Supreme Court ruled that ineffective assistance of post- conviction counsel may serve as cause to overcome the procedural default of a claim of ineffective assistance of trial counsel.185 The Coleman Court had held that the absence or ineffective assistance of state post-conviction counsel generally could not establish cause to excuse a procedural default because there is noconstitutional right to counsel in state post-

180 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State’s procedural requirements for 19 presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”). 20 181 Murray v. Carrier, 477 U.S. 478, 496 (1986). 21 182 Id.at 488. 22 183 See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 184 White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989)(citing United States v. Frady, 456 U.S. 23 152, 170 (1982)). 185 566 U.S. 1 (2012). conviction proceedings.186 In Martinez, however, the Supreme Court established an equitable exception to that rule, holding that the absence or ineffective assistance of counsel at an initial- review collateral proceeding may establish cause to excuse a petitioner’s procedural default of substantial claims of ineffective assistance of trial counsel.187 The Court described “initial- review collateral proceedings” as “collateral proceedings which provide the first occasion to

raise a claim of ineffective assistance at trial.”188 Dominguez was unrepresented throughout his initial state habeas action,189 sothe only issue is whether Dominguez’s underlying ineffective-assistance-of-trial-counsel claim is substantial. Because this claim, as now presented, was not adjudicated on its merits in state court, I review the claim de novo.190 Although Dominguez’s trial counsel may have strategically decided to cross-examine Dr. Telgenhoff as to the cause of Friedman’s death, as opposed to retaining an expert to dispute his findings,191 as the respondents point out, that does not demonstrate that Dominguez’s trial counsel was not deficient in this case. Indeed, because Friedman’s death was complicated by the

treatment that he received following the attack, the issue of causation should have been a main topic at trial that deserved much attention and consideration. It is unclear why Dominguez’s trial

186 See Coleman, 501 U.S. at 752–54. 187 See Martinez, 566 U.S. at 9. 188 Id.at 8. 21 189 See ECF Nos. 24; 24-4 at 2; 24-23 at 2. 22 190 See Cone v. Bell, 556 U.S. 449, 472 (2009). 191 Cf. Harrington, 562 U.S. at 111 (“Strickland does not enact Newton’s third law for the 23 presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense.”). counsel did not attempt to present his own witness, like Dr. Hirschfield, to rebut Dr. Telgenhoff’s findings,especially considering the significance of his sole testimony on causation. But even if Dominguez’s trial counsel was deficient ininvestigating the cause of Friedman’s death, Dominguez fails to demonstrate prejudice regarding the specific claim at issue—the failure to move to dismiss the charges.192 Whether the State met its burden of

proving proximate causation through the testimony of Dr. Telgenhoff was an issue for the jury— the finder of fact.193 So, even if Dominguez’s trial counsel had moved to dismiss the murder and conspiracy to commit murder charges either prior to the trial or after the close of evidence, the state district court would have denied thatmotion under Nevada law.194 Accordingly, because a motion to dismiss the murder and conspiracy-to-commit-murder charges would have been inappropriate and denied, there is not areasonably probable that, but for counsel’s errors, the result of the proceeding would have been different.195 Because Dominguez has not shown

192 Strickland, 466 U.S. at 694.

193 SeeMcNair v.State,825 P.2d 571, 573 (Nev. 1992) (“[I]tis the jury’s function, not that of the court, to assess the weight of the evidence.”); Lay v. State,886 P.2d at 450(“[I]t is 16 exclusively within the province of the trier offact to weigh evidence and pass on the credibility of witnesses and their testimony.”); Etcheverry,821 P.2d at 351 (explaining that the jury was 17 accurately instructed on the issue of proximate cause). 194 See State v. Wilson,760 P.2d 129, 130 (Nev. 1988) (“[I]t was error for the trial court to take 18 the case from the jury by dismissing the action at the close of the prosecution’s case in lieu of giving the jury an advisory instruction to acquit because of insufficient evidence.”); State v. 19 Corinblit,298 P.2d 470, 471 (Nev. 1956) (holding that “the trial court was in error in taking the case from the jury” when it “ordered the case dismissed [as requested by the defense] for failure 20 of the state to prove a material element of the crime charged” after the State completed its case); Silks v. State,545 P.2d 1159, 1161 (Nev. 1976) (explaining that,instead of moving to dismiss the 21 charges against him, the defendant “should have moved that the jury be advised to acquit by reason of insufficient evidence”); State v. Combs, 14 P.3d 520, 521 (Nev. 2000) (“not[ing] that 22 respondent’s motion to dismiss the charges at the close of the State’s case-in-chief was not properly made[]and should not have been granted by the district court judge. Instead, respondent 23 should have moved for an advisory instruction to acquit pursuant to NRS 175.381(1).”). 195 Strickland, 466 U.S. at 694. prejudice resulting from his trial counsel’s alleged failure to dismiss the murder and conspiracy to commit murder counts, Ground 2 is not substantial. Accordingly, there is no cause to excuse Dominguez’s procedural default.196 Ground 2 is denied because it is procedurally defaulted. 3. Ground 3 In Ground 3, Dominguez alleges that his federal constitutional rights were violated when

his trial counsel failed to investigate the State’s witnesses.197 Dominguez explains that the State noticed various medical professionals, including hospital personnel, paramedics, and coroner’s office personnel, but his trial counsel failed to investigate these witnesses to determine whether they could have established that Friedman’s surgery was an intervening cause of Friedman’s death, especially in light of the fact that the State failed to call anyone but Dr. Telgenhoff, implying that the other medical professionals would not have been helpful to the State’s case.198 Dominguez explains that Dr. Hirschfeld’s report establishes that an investigation was crucial in this case, sohis trial counsel should have obtained Friedman’s medical records and consulted an expert.199

a. Ground 3was not adjudicated on its merits in state court. Dominguez included this claim in his first state habeas petition.200 The Nevada Supreme Court rejected it because Dominguez did not identify any evidence that would have changed the outcome at trial: [A]ppellant claimed that trial counsel failed to conduct an investigation or interviews of the State’s witnesses. Appellant 20 21 196 Martinez,566 U.S. at 9. 197 ECF No. 61 at 23. 22 198 Id.at 24. 23 199 Id.at 24-25. 200 ECF No. 24 at 16. 1 failed to demonstrate that his trial counsel’s performance was deficient or that he was prejudiced. While appellant listed the 2 witnesses, appellant failed to indicate what evidence or testimony investigators or interviews would have uncovered that would have 3 had a reasonable probability of altering the outcome at trial. Therefore, we conclude that the district court did not err in denying this claim.201 Dominguez also included this claim in his second state habeas petition.202 The Nevada Supreme Court affirmed the denial of Dominguez’s second state habeas petition because it was untimely, successive, and procedurally barred.203 Dominguez again raised this claim in his third state habeas petition.204 That time, however, Dominguez discussed Dr. Hirschfeld’s report.205 The Nevada Supreme Court affirmed the denial of Dominguez’s third state habeas petition because it was untimely and successive.206 The Nevada Supreme Court also explained that “appellant raised several of his claims on direct appeal or in a previous petition and they were rejected by this court on appeal. ...Those claims are barred by the law-of-the-case doctrine and he has articulated no basis for justifying further consideration of those claims.”207 As with Ground 2, Dominguez asserts that this ground should be reviewed de novo because this new claim, with the addition of Dr. Hirschfeld’s report, has not been adjudicated on the merits by the Nevada Supreme Court.208 Again, I agree, as I find that the inclusion of Dr.

201 ECF No. 24-23 at 4. 19 202 ECF No. 24-10 at 19. 20 203 ECF No. 24-25. 21 204 SeeECF No. 59-1 at 19. 205 See id.at 20-–23. 22 206 ECF No. 59-13 at 2. 23 207 Id.at 2–3. 208 ECF No. 85 at 58. Hirschfeld’s report fundamentally altered this claim for the same reasons it did Ground 2.209 Therefore, Ground 3 is also subject to the procedural-default doctrine and is barred by that doctrine unless Dominguez can overcome the procedural default. And becauseDominguez was unrepresented throughout his initial state habeas action,210 the only issue is whether Dominguez’s underlying ineffective-assistance-of-trial-counsel claim is substantial. Because

this claim, as now presented, was not adjudicated on its merits in state court, I review the claim de novo.211 b. Ground 3is procedurally defaulted. Defense counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”212 “In any ineffectiveness case, a particular decision not to investigate must be directlyassessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”213 This investigatory duty includes investigating the defendant’s “most important defense,”214 and investigating and introducing evidence thatdemonstrates factual innocence or evidence that

raises sufficient doubt about the defendant’s innocence.215 “[I]neffective assistance claims based on a duty to investigate must be considered in light of the strength of the government’s case.”216

209 Dickens, 740 F.3d at 1318. 19 210 See ECF Nos. 24; 24-4 at 2; 24-23 at 2. 20 211 See Cone v. Bell, 556 U.S. 449, 472 (2009). 21 212 Strickland, 466 U.S. at 691. 213 Id. 22 214 Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994). 23 215 Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999). 216 Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986). The State listed numerous expert medical witnesses: Dr. Piotr Kubiczek, Paramedics/AMR Unit 3911, Dr. David McElmeel, Dr. Patrick Murphy, Dr. Sernariano, Dr. Deborah Kuls, Dr. Casey Michael, Dr. Laura Boomer, Dr. Shaw Tang, and Dr. Stephanie Woodard.217 It is unclear from the record what, if any, investigation was conducted by Dominguez’s trial counsel into these possible witnesses. But because causation was a significant

issue at trial,to the extent that Dominguez’s trial counselfailed “to make reasonable investigations” into the cause of Friedman’s death, counsel was deficient.218 But even if counsel was deficient, Dominguez fails to showprejudice.219 First, as respondents note, Dominguez fails to demonstrate that an investigation into any of the State’s witnesses would have led to favorable evidence.220 Second, even if Dominguez’s trial counsel had presented the testimony of an expert such as Dr. Hirschfeld, that testimony would only have presented a question of fact as to Friedman’s cause of death for the jury to resolve after also considering Dr. Telgenhoff’s testimony. It also must be remembered that Dr. Hirschfeld concluded that Friedman’s death was the result of the aggressive medical approach taken during

his hospitalization for the stab wounds.221 And Dominguezfails to demonstrate that testimony such as this would have changed the outcome of his trial whenthe jury was instructed that “[a] person is liable for the killing of another person even if the death of the victim was the result of medical treatment, so long as the wound inflicted upon the victim was the reason [that]

217 ECF No. 21-10. 21 218 Strickland, 466 U.S. at 688, 691. 22 219 Id.at 694. 220 See Djerf v. Ryan, 931 F.3d 870, 881 (9thCir. 2019) (“Strickland prejudice is not established 23 by mere speculation.”). 221 ECF No. 57-1 at 12. necessitated the treatment.”222 So, although Dr. Hirschfeld opined that the wounds inflicted upon Friedman only necessitated conservative treatment, the treatment that Friedman received— aggressiveor not—was still the result of the wounds inflicted upon Friedman. Because Dominguez has not shown a reasonable probability that, but for counsel’s failure to investigate the State’s witnesses, the result of his trial would have been different,223 Ground 3

is not substantial. Therefore, there is no cause to excuse Dominguez’s procedural default.224 Ground 3 is denied because it is procedurally defaulted. 4. Ground 4 In Ground 4, Dominguez alleges that his federal constitutional rights were violated when his trial counsel failed to object to the reasonable doubt jury instruction.225 Dominguez explains that the reasonable-doubt instruction shifted the burden to him, lowered the State’s burden of proof, and relieved the State of its obligation to prove the elements of the charged crime.226 Dominguez focuses onthe “govern or control” language in the following sentence of the instruction: “It is not mere possible doubt but is such a doubt as would govern or control a

person in the more weighty affairs of life.”227 In Dominguez’s appeal from the denial of his first state habeas petition, the Nevada Supreme Court rejected this theory because the instruction was proper: [A]ppellant claimed that trial counsel failed to object to jury instruction 39, which defined reasonable doubt. Appellant failed to 19 demonstrate that his trial counsel’s performance was deficient or 20 222 ECF No. 23-2 at 33. 21 223 Strickland, 466 U.S. at 694. 224 Martinez,566 U.S. at 9. 22 225 ECF No.61 at 29. 23 226 Id.at 30. 227 ECF No. 85 at 64. 1 that he was prejudiced. Jury instruction 39 contained the statutory definition of reasonable doubt as set forth in NRS 175.211, and 2 NRS 175.211 has been previously determined to be constitutional. Lord v. State, 107 Nev. 28, 40, 806 P.2d 548, 556 (1991). 3 Therefore, we conclude that the district court did not err in denying this claim.228

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”229 “[T]he Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’”230 In assessing the constitutionality of a jury instruction, I must determine “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.”231 The Nevada Supreme Court’s rejection of Dominguez’s Strickland claim was neither contrary to nor an unreasonable application of clearly established law as determined by the United States Supreme Court. Jury Instruction No. 39 read: The Defendant is presumed innocent until the contrary is proved. This presumption places upon the State the burden of proving 17 beyond a reasonable doubt every material element of the crime charged and that the Defendant is the person who committed the 18 offense. 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 19 person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the 20 evidence, are in sucha condition that they cansay they feel an 21 228 ECF No. 24-23 at 5. 22 229 In re Winship, 397 U.S. 358, 364 (1970). 230 Victor v. Nebraska, 511 U.S. 1, 5 (1994) (internal citation omitted) (quoting Holland v. 23 United States, 348 U.S. 121, 140 (1954)). 231 Id.at 6. 1 abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual, not mere 2 possibility or speculation. If you have a reasonable doubt as to the guilt of the Defendant, he is entitled toa verdict of not guilty.232

The Ninth Circuit evaluated the same reasonable-doubt instruction in Ramirez v. Hatcher.233 The panel explained that it did “not endorse the Nevada instruction’s ‘govern or control’ language,” but “‘not every unhelpful, unwise, or even erroneous formulation of the concept of reasonable doubt in a jury charge renders the instruction constitutionally deficient.’”234 And the courtheld that,“[c]onsidering the jury instructions in this case in their entirety, . . . the ‘govern or control’ language did not render the charge unconstitutional.”235 Jury Instruction No. 39 also complied with Nevada law.236 Because thelanguage of this instruction has been determined to be constitutional by the Ninth Circuit,and it complies with Nevada law, the Nevada Supreme Court reasonably concluded that Dominguez’s trial counsel was not deficient for not objecting to the instruction.237 Dominguez is denied federal habeas relief for Ground 4.

232 ECF No. 23-2 at 42. 233 136 F.3d 1209, 1210–11 (9thCir. 1998). 234 Id.at 1214 (citing Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir. 1996)). 20 235 Id.; see also Nevius v. McDaniel, 218 F.3d 940, 944 (9th Cir. 2000) (holding that the 21 reasonable doubt jury instruction was identical to the one in Ramirez, so “[t]he law of this circuit thus forecloses Nevius’s claim that his reasonable doubt instruction was unconstitutional”). 22 236 SeeNev. Rev. Stat. § 175.211 (defining reasonable double and mandating that “[n]o other definition of reasonable doubt may be given by the court to juries in criminal actions in this 23 State”). 237 Strickland, 466 U.S. at 688. 5. Ground 5 In Ground 5, Dominguez alleges that he is entitled to relief because of the cumulative effect of his trial counsel’s errors.238 In Dominguez’s appeal of the denial of his first state habeas petition, the Nevada Supreme Court held: “appellant’s claim that cumulative errors required relief lacks merit.”239 Cumulative error applies where, “although no single trial error

examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.”240 Although I have determined that Dominguez’s trial counsel may have been deficient regarding the allegations in Grounds 2 and 3, I also determined that Dominguez failed to demonstrate prejudice. I now determine, based on my previous reasonings in Ground 2 and 3, that the cumulative effect of these twodeficiencies does not prejudice Dominguez.241 C. Certificate of Appealability The right to appeal from the district court’s denial of a federal habeas petition requires a certificate of appealability. To obtain that certificate, the petitioner must make a “substantial

showing of the denial of a constitutional right.”242 “Where a district court has rejected the constitutional claims on the merits,” that showing “is straightforward: The petitioner must

238 ECF No. 61 at 31. 19 239 ECF No. 24-23 at 6. 20 240 United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). 241 Dominguez requests an evidentiary hearing where he can offer proof “concerning the 21 allegations in [his] amended petition.” ECF Nos. 61 at 39; 85 at 72. I have already determined that Dominguez is not entitled to relief, and I find that neither further factual development nor 22 any evidence that may be proffered at an evidentiary hearing would affect my reasons for denying Dominguez’s remaining grounds for relief. SoI deny Dominguez’s request for an 23 evidentiary hearing. 242 28 U.S.C. § 2253(c). demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”?** Because I have rejected petitioner’s constitutional claims on their merits, and he has not shown that this assessment of his claims is debatable or wrong, I find that Alla certificate of appealability is unwarranted in this case. 5 Conclusion 6 IT IS THEREFORE ORDERED that the petition [ECF No. 61] is DENIED, and because 7|| reasonable jurists would not find my decision to deny this petition to be debatable or wrong, a 8|| certificate of appealability is DENIED. 9 The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. Dated: April 6, 2020. 7 Le aes fige Ienhiey A. Dosey

———_—_—_——— Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077- 79 (9th Cir. 2000). 40