                                                                            FILED
                             NOT FOR PUBLICATION                            AUG 01 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


 TODD M. HONEYCUTT,                               No. 09-16758

               Petitioner - Appellant,            D.C. No. 2:06-cv-00634-RLH-RJJ

   v.
                                                  MEMORANDUM*
 BILL DONAT, Warden and ATTORNEY
 GENERAL OF THE STATE OF
 NEVADA,

               Respondents - Appellees.


                     Appeal from the United States District Court
                              for the District of Nevada
                    Roger L. Hunt, Senior District Judge, Presiding

                        Argued and Submitted April 17, 2013
                             San Francisco, California

Before: NOONAN, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.

        Petitioner Todd M. Honeycutt appeals the district court’s denial of his

petition for a writ of habeas corpus (the “Petition”). We affirm in part and reverse

in part.



           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           I

      The Nevada Supreme Court reasonably applied clearly established federal

law when it denied Honeycutt’s prosecutorial misconduct claims. “A prosecutor’s

actions constitute misconduct if they ‘so infected the trial with unfairness as to

make the resulting conviction a denial of due process.’” Wood v. Ryan, 693 F.3d

1104, 1113 (9th Cir. 2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181

(1986)). “On habeas review, constitutional errors of the ‘trial type,’ including

prosecutorial misconduct, warrant relief only if they ‘had substantial and injurious

effect or influence in determining the jury’s verdict.” Id. (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637–38 (1993)).

      In this case, the Nevada Supreme Court reasonably concluded that the

choking incident constituted misconduct, but did not prejudice Honeycutt. The

relevant factors under Brecht demonstrate that the choking incident did not have a

“substantial and injurious effect” on the outcome of Honeycutt’s case. The record

reveals strong evidence of Honeycutt’s guilt. See Davis v. Woodford, 384 F.3d

628, 644 (9th Cir. 2003) (“This [is] not a case in which there was . . . ‘a strong

likelihood that the effect of the [misconduct] would be devastating to the

defendant.’”). The choking incident was a brief episode and not part of a pattern of

ongoing misconduct. Honeycutt’s testimony (which the incident interrupted) was


                                           2
not critical as Honeycutt claims—a fact underscored by Honeycutt’s last minute

decision to testify against counsel’s advice. Further, the trial court sustained

defense counsel’s objection to the incident. See Sassounian v. Roe, 230 F.3d 1097,

1106 (9th Cir. 2000). Thus, we cannot say that the Nevada Supreme Court

unreasonably concluded that the choking incident was harmless.

      The Nevada Supreme Court did not unreasonably apply Darden when it

concluded that none of the prosecutor’s other actions (individually or collectively)

amounted to misconduct. We note that defense counsel failed to object to most of

the other actions Honeycutt now claims were misconduct. Accordingly, the

Nevada Supreme Court reasonably denied Honeycutt’s prosecutorial misconduct

claims.

                                           II

      Even assuming that the trial court erred when it failed to instruct the jury on

Honeycutt’s alleged reasonable belief of the victim’s consent, “[a] jury instruction

that erroneously. . . omits an element of the offense is a non-structural

constitutional error subject to harmless error review.” United States v. Anchrum,

590 F.3d 795, 799 (9th Cir. 2009). “Under Brecht, an instructional error is

prejudicial and habeas relief is appropriate only if, after reviewing the record as a

whole, we conclude that there was a substantial and injurious effect or influence on


                                           3
the verdict, or if we are ‘left in grave doubt’ as to whether there was such an

effect.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (quoting

Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

      Here, Honeycutt failed to show that the jury would have accepted

Honeycutt’s alleged belief of the victim’s consent, given the jury’s rejection of

Honeycutt’s version of events and the lack of other supporting evidence. Thus, we

cannot say that any alleged failure to instruct leaves us in “grave doubt” as to the

propriety of Honeycutt’s conviction. Accordingly, any alleged violation was

harmless under Brecht.

                                          III

      The Nevada Supreme Court reasonably denied Honeycutt’s ineffective

assistance of counsel claim based on counsel’s failure to proffer the correct belief

of consent instruction. The Nevada Supreme Court invoked the “complete

instruction” requirement for the first time in denying Honeycutt relief on direct

appeal. See Honeycutt v. State, 56 P.3d 362, 368–69 (Nev. 2002). The Nevada

Supreme Court overruled the requirement just three years later in Carter v. State,

121 P.3d 592, 595–96 (Nev. 2005). Honeycutt’s counsel could not have known

that failure to proffer the “complete instruction” would prompt the trial court to




                                           4
reject it. Thus, Honeycutt cannot show that counsel’s performance was deficient

under Strickland v. Washington, 466 U.S. 668, 687 (1984).

                                          IV

      The Nevada Supreme Court reasonably applied clearly established law when

it denied Honeycutt’s claim that joinder of his charges for trial violated his due

process rights and right against self incrimination. Honeycutt cites no Supreme

Court case to support his theory that joinder of the charges violated his right

against self-incrimination. While he cites cases for the general rule that a

defendant cannot be compelled to testify against himself, he fails to demonstrate

that the trial court compelled him to testify. Indeed, Honeycutt chose to testify

over advice of counsel. Thus, the Nevada Supreme Court did not unreasonably

apply the Fifth Amendment’s general prohibition against self-incrimination.

Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (“[E]valuating whether a rule

application was unreasonable requires considering the rule’s specificity. The more

general the rule, the more leeway courts have in reaching outcomes in case-by-case

determinations.” (alteration in original) (internal quotation marks omitted)).

      Similarly, Honeycutt fails to show that joinder rendered his trial

“fundamentally unfair,” thereby violating his due process rights. See Fields v.

Woodford, 309 F.3d 1095, 1110 (9th Cir. 2002), amended by 315 F.3d 1062 (9th


                                           5
Cir. 2002). Evidence of the sexual assault and kidnapping was cross-admissible

with the evidence of solicitation. See id. Further, the State’s evidence on both sets

of charges was strong, foreclosing any argument that evidence of the stronger

charge would taint the jury’s view of the weaker. See id. Thus, the Nevada

Supreme Court reasonably denied Honeycutt’s joinder-related claims.

                                           V

      The Nevada Supreme Court reasonably applied Strickland when it rejected

Honeycutt’s ineffective assistance of trial counsel claim arising from counsel’s

alleged failure to introduce exculpatory evidence. To overcome the presumption of

adequate assistance, “a defendant must show that counsel failed to act ‘reasonably

considering all the circumstances.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1403

(2011) (alteration omitted). In addition, the defendant must “prove prejudice,”

meaning that he must show a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

      Here, counsel’s failure to introduce allegedly exculpatory letters did not

constitute deficient performance under Strickland. While Honeycutt claims that

there “was no strategic reason for not introducing these letters,” the record reveals

that counsel could have reasonably decided not to introduce the letters. Honeycutt

intended to invoke the Fifth Amendment and to refuse to testify regarding the


                                           6
solicitation charge. To preserve this right, counsel even advised defendant to

refrain from testifying on the sexual assault and kidnapping charges. Had counsel

introduced the letters at trial, it would have opened Honeycutt up to cross

examination on their content, defeating counsel’s effort to avoid Honeycutt

testifying. Because Honeycutt cannot show that counsel failed to act reasonably

given the circumstances, the Nevada Supreme Court reasonably denied his

Strickland claim.1

                                           VI

      We reject Honeycutt’s claim of cumulative error. Honeycutt fails to show

that, taken together, the alleged errors “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” See Parle v. Runnels, 505

F.3d 922, 927 (9th Cir. 2007) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)).

                                           VII

      The Nevada Supreme Court unreasonably denied Honeycutt’s Massiah v.

United States, 377 U.S. 201 (1964), claim. The Sixth Amendment did not bar the

State’s investigation of the solicitation charge, even though Honeycutt was

      1
       The Petition raised two additional ineffective assistance of counsel claims.
We do not address them, because Honeycutt has since conceded that they lack
merit.

                                            7
previously charged with the related offenses of sexual assault and kidnapping. See

McNeil v. Wisconsin, 501 U.S. 171, 175–76 (1991) (“The police have an interest . . .

in investigating new or additional crimes [after an individual is formally charged

with one crime.]” (alterations in original) (quoting Maine v. Moulton, 474 U.S. 159,

179 (1985)). Nor did it bar the government from using Honeycutt’s deliberately

elicited statements as evidence of guilt on the solicitation charge.

      But the Sixth Amendment did forbid the government from using deliberately

elicited statements to incriminate the defendant on charges to which the right of

counsel had already attached. See Moulton, 474 U.S. at 180. Applying this rule, we

conclude that this case is indistinguishable from Moulton. Here, as in Moulton, the

state elicited incriminating statements through an informant (and undercover agent)

while the defendant was under indictment. See id. at 177 (the state “knew that [the

defendant] would make statements that he had a constitutional right not to make to

their agent prior to consulting with counsel”). Here, as in Moulton, the

incriminating statements led to a new charge being filed against Honeycutt. Here,

as in Moulton, the state used Honeycutt’s deliberately elicited statements to

incriminate him on charges to which his right of counsel had already attached.

      We do not reach the issue of whether the violation of Honeycutt’s Massiah

right was harmless error. “Usually when the government fails to argue


                                           8
harmlessness, we deem the issue waived and do not consider the harmlessness of

any errors we find.” U.S. v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th Cir. 2005)

(“This makes perfect sense in light of the nature of the harmless-error inquiry: it is

the government’s burden to establish harmlessness, and it cannot expect us to

shoulder that burden for it.”). None of the exceptions to the harmless-error waiver

rule applies here. See id. at 1100–01.

      AFFIRMED IN PART AND REVERSED IN PART. The parties shall

bear their own costs.




                                           9
                                                                           FILED
Honeycutt v. Donat, No. 09-16758                                           AUG 01 2013
N.R. SMITH, Circuit Judge, concurring in part, dissenting in part       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

      I agree with the majority’s conclusions and join in Parts I through VI of their

disposition. However, I write separately in dissent, because I disagree that the

Nevada Supreme Court unreasonably applied Massiah v. United States, 377 U.S.

201 (1964), or Maine v. Moulton, 474 U.S. 159 (1985), when it denied Honeycutt’s

Massiah claim.

      The majority rests its conclusion on its view that this case is

indistinguishable from Moulton. Even a cursory reading of Moulton contradicts

this view. In Moulton, the police wired an informant (one of the co-defendants) to

record a pre-planned meeting between the informant and Moulton. 474 U.S. at

164-65. The police later admitted that they were aware that the informant and

Moulton planned to discuss the charges already pending against Moulton. Id. at

165. During the meeting, the informant encouraged Moulton to engage in “a

prolonged discussion of the pending charges . . . .” Id. While Moulton had

previously suggested killing a witness, that plan was quickly dismissed during the

conversation. Id. The state never charged Moulton with solicitation nor

introduced evidence of solicitation. Id. at 167. Accordingly, the state used the

evidence elicited only to prove charges already pending during the investigation



                                          1
and crimes committed contemporaneously with the previously-charged crimes. Id.

The Supreme Court concluded that the state “knowingly circumvent[ed]”

Moulton’s right to counsel and, thereby, violated Moulton’s Sixth Amendment

right. Id. at 180.

      There is a difference in kind between this case and Moulton in terms of the

police’s investigation, the evidence obtained, and the state’s use of the evidence in

the two cases. Accordingly, Moulton bears only a superficial resemblance to this

case. For Moulton to be “indistinguishable” as the majority claims, there would

have to be several important factual changes. The majority’s view would require

that: (1) the state had used the informant to gather specific details of Honeycutt’s

rape of the victim; (2) the police knew, going into the investigation, that the

informant would elicit these details; (3) the state had introduced those details at

trial; (4) the state had failed to charge Honeycutt with solicitation; and (5) the state

had failed to introduce any statements about the solicitation.

      Of course, just the opposite occurred in this case. The state did not seek

details of Honeycutt’s rape of the victim during its investigation of Honeycutt’s

later conspiracy to kill the victim. The police, permissibly investigating this

separate crime, see McNeil v. Wisconsin, 501 U.S. 171, 175-76 (1991), would have

had no reason to expect details about the rape to come out of the investigation.

                                            2
Indeed, no details did come forth, so no details of the previously charged crimes

were introduced at trial. Instead, the investigation brought forth details of a second

crime, solicitation, which were used at trial to prove that crime.

      The majority, then, implicitly argues that anytime a second, separate crime

shows consciousness of guilt of a previously charged crime, those two crimes

cannot be tried together. No clearly established federal law sets forth this

automatic severance rule. In fact, elsewhere, the majority holds that the Nevada

Supreme Court reasonably rejected Honeycutt’s severance claim. Even more

importantly, Moulton, upon which the majority relies, says nothing about

severance or the cross-admissibility of evidence, because the facts of that case did

not implicate those issues. Thus, Moulton is distinguishable from this case, does

not establish (much less clearly establish) the law that the majority seeks to impose

upon the states, and cannot serve as the basis for relief under 28 U.S.C. § 2254(d).




                                           3
