Petition for Writ of Certiorari — Mazen Alotaibi, Petitioner v. Nethanjah Breitenbach, Warden, et al.
Supreme Court briefJun 16, 2026
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No. 25In the
Supreme Court of the United States
MAZEN ALOTAIBI,
Petitioner,
v.
NETHANJAH BREITENBACH, CHARLES DANIELS,
LOVELOCK CORRECTIONAL CENTER,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Cliff Gardner
Counsel of Record
Lazuli Whitt
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093
casetris@aol.com
Counsel for Petitioner
Mazen Alotaibi
121098
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
Petitioner was charged with an offense mandating a
35-year minimum term. After hearing the evidence, the
judge advised counsel he would, if requested, instruct
on a lesser offense with a five-year maximum term.
Because petitioner was absent, he ordered counsel to
discuss the matter with petitioner. Counsel agreed, but
later admitted he neither discussed the matter with
petitioner, nor requested the lesser-offense instruction,
because he misunderstood the punishment for the lesser
offense. Jurors convicted and the court imposed a 35-year
minimum term. Petitioner subsequently alleged counsel’s
performance (1) fell below an objective standard of
reasonableness and (2) prejudiced him given the “totality
of the evidence” test set forth in Strickland v. Washington,
466 U.S. 668 (1984).
State courts agreed counsel’s performance was
unreasonable. But they refused to consider the objective
evidence of prejudice petitioner offered showing that had
he been consulted, he would have agreed to lesser-offense
instructions. Instead, the state courts held there was no
showing of prejudice absent a self-serving declaration or
testimony from petitioner declaring that he would have
agreed to lesser-offense instructions. The Ninth Circuit
held this was not an unreasonable determination of federal
law. On this record, the question presented is this:
Was the state court’s refusal to consider
any of petitioner’s objective evidence in the
absence of either a declaration or testimony
from petitioner contrary to or an unreasonable
application of Strickland’s explicit holding that
prejudice is assessed by considering the totality
of the evidence?
ii
LIST OF PARTIES AND
CORPORATE DISCLOSURE STATEMENT
Petitioner Mazen Alotaibi is the petitioner in this case
and was represented in the court below by Cliff Gardner
and Lazuli Whitt. Nethanjah Breitenbach is the current
Warden of Lovelock Correctional Center where petitioner
is incarcerated. Charles Daniels is the current Director
of the Nevada Department of Corrections which oversees
the Lovelock Correctional Center. The Warden, Director,
and Lovelock Correctional Center were represented below
by the Nevada Attorney General’s office. Respondents are
Nethanjah Breitenbach, Charles Daniels and Lovelock
Correctional Center. Pursuant to Rule 29.6, petitioner
states that no parties are corporations.
RELATED PROCEEDINGS
Alotaibi v. Breitenbach, 24-2523, United States
Court of Appeals for the Ninth Circuit, Judgment entered
March 26, 2026 (denying petition for panel rehearing and
rehearing en banc), January 12, 2026 (affirming District
Court’s denial of habeas petition) and October 30, 2024
(granting request for certificate of appealability).
Alotaibi v. Williams, et al., 2:21-cv-01281-GMN-BNW,
United States District Court for the District of Nevada,
Judgment entered April 8, 2024 (denying petition for writ
of habeas corpus).
Alotaibi v. Baker, et al., 79752, Nevada Supreme
Court, Judgment entered February 19, 2021 (denying
review of petition for writ of habeas corpus).
Alotaibi v. Baker, et al., 78752-COA, Nevada Court of
Appeal, Judgment entered December 18, 2020 (denying
iii
rehearing of petition for writ of habeas corpus) and
October 16, 2020 (affirming state District Court’s denial
of habeas petition).
Alotaibi v. Baker, et al., A-18-785145-W, Nevada District
Court, Clark County, Judgment entered September 5, 2019
(denying petition for writ of habeas corpus).
Alotaibi v. Nevada, 67380, Nevada Supreme Court,
Judgment entered April 22, 2020 (affirming judgment of
conviction en banc), November 3, 2017 (order granting
enbanc reconsideration), April 26, 2017 (order denying
rehearing) and February 28, 2017 (affirming conviction
on direct appeal).
Nevada v. Alotaibi, C287173, Nevada District Court,
Clark County, Judgment entered November 18, 2014
(denying motion for new trial after conviction and/or
evidentiary hearing).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
LIST OF PA RTIES A N D COR POR AT E
DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . ii
RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONST I T U T IONA L A N D STAT U T ORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3
A. The Trial Evidence And The Evidence Of
Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Instructional Conference And Counsel’s
Promise To Discuss The Lesser-Offense
Instruction With Defendant . . . . . . . . . . . . . . . . . 5
v
Table of Contents
Page
C. State Post-Conviction Proceedings . . . . . . . . . . . 6
D. The Panel Decision . . . . . . . . . . . . . . . . . . . . . . . . . 9
REASONS FOR GRANTING THE WRIT . . . . . . . . . 10
I.
NEVA DA’S REQUIREMENT THAT
A HA BEAS PETITIONER SUBMIT
DI R E C T E V I DENC E – I N T H E
FOR M OF A DECL A R AT ION OR
T E S T I MON Y – T O E S TA BL I S H
PREJUDICE IN ASSERTING A CLAIM
OF INEFFECTI V E A S SISTA NCE
I S C O N T R A R Y T O C L E A R LY
ESTABLISHED FEDERAL LAW . . . . . . . . . 11
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
vi
TABLE OF APPENDICES
Page
APPENDIX A – MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT, FILED
JANUARY 12, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B – ORDER OF THE UNITED
S TAT E S C O U RT O F A P P E A L S F O R
T H E N I N T H C I R C U I T, F I L E D
OCTOBER 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5a
APPENDIX C – ORDER OF THE UNITED
S TAT E S D I S T R I C T C O U RT F O R
THE DISTRICT OF NEVADA, FILED
APRIL 8, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7a
APPENDIX D – ORDER DENYING PETITION
FOR REVIEW OF THE SUPREME COURT
OF THE STATE OF NEVADA, FILED
FEBRUARY 19, 2021 . . . . . . . . . . . . . . . . . . . . . . . . 35a
APPENDIX E – ORDER DENYING
REHEARING OF THE COURT OF APPEALS
OF THE STATE OF NEVADA, FILED
DECEMBER 18, 2020 . . . . . . . . . . . . . . . . . . . . . . . 37a
APPENDIX F – ORDER OF AFFIRMANCE OF
THE COURT OF APPEALS OF THE STATE
OF NEVADA, FILED OCTOBER 16, 2020 . . . . . 38a
APPENDIX G – DECISION AND ORDER OF
THE DISTRICT COURT, CLARK COUNTY,
NEVADA, DATED SEPTEMBER 5, 2019 . . . . . . 41a
vii
Table of Appendices
Page
APPENDIX H – OPINION OF THE SUPREME
COURT OF THE STATE OF NEVADA FILED
NOVEMBER 9, 2017 . . . . . . . . . . . . . . . . . . . . . . . . 57a
APPENDIX I – ORDER GRANTING EN BANC
RECONSIDERATION OF THE SUPREME
COURT OF THE STATE OF NEVADA,
FILED NOVEMBER 3, 2017 . . . . . . . . . . . . . . . . . 72a
APPENDIX J – ORDER DENYING
REHEARING OF THE SUPREME COURT
OF THE STATE OF NEVADA, FILED
APRIL 26, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74a
APPENDIX K – ORDER OF AFFIRMANCE OF
THE SUPREME COURT OF THE STATE OF
NEVADA, FILED FEBRUARY 28, 2017 . . . . . . . 77a
A P P ENDIX L – F I NDI NG S OF FA C T,
CONCLUSIONS OF LAW AND ORDER
AND DECISION OF THE DISTRICT COURT
OF CLARK COUNTY, NEVADA, FILED
NOVEMBER 18, 2014 . . . . . . . . . . . . . . . . . . . . . . . 81a
APPENDIX M – ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED MARCH 26, 2026 . . . 107a
viii
TABLE OF CITED AUTHORITIES
Page
Federal Cases
Alotaibi v. Breitenbach,
2026 WL 84567 (9th Cir. 2026) . . . . . . . . . . . . . . . . . 10
Chacon v. Wood,
36 F.3d 1459 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . 16
Cullen v. United States,
194 F.3d 401 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 15
Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Dunn v. Reeves,
594 U.S. 731 (2021) . . . . . . . . . . . . . . . . . . . . . 12, 13, 14
Holland v. United States,
348 U.S. 121 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Johnson v. Duckworth,
793 F.2d 898 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . 15
Jones v. Wood,
114 F.3d 1002 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . 16
Lee v. United States,
582 U.S. 357 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
McFadden v. United States,
576 U.S. 186 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ix
Cited Authorities
Page
Merzbacher v. Shearin,
706 F.3d 356 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 15
Paters v. United States,
159 F.3d 1043 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . 15
Strickland v. Washington,
466 U.S. 668 (1984) . . . . . . . . 6, 9, 12, 13, 14, 16, 17, 18
Toro v. Fairman,
940 F.2d 1065 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . 15
Turner v. Calderon,
281 F.3d 851 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 15
United States v. Bryant,
655 F.3d 232 (3d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 17
United States v. Davis,
428 F.3d 802 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 16
United States v. Gordon,
156 F.3d 376 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . 15, 16
United States v. Kearn,
90 F.4th 1301 (10th Cir. 2024) . . . . . . . . . . . . . . . . . . 18
United States v. Morin,
627 F.3d 985 (5th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 17
x
Cited Authorities
Page
United States v. Nivica,
887 F.2d 1110 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . 17
United States v. Santos,
553 U.S. 507 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Scruggs,
549 F.2d 1097 (6th Cir. 1977) . . . . . . . . . . . . . . . . . . . 17
United States v. Valdez,
973 F.3d 396 (5th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 15
Walters v. Martin,
18 F.4th 376 (4th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 15
State Cases
Quillen v. State,
112 Nev. 1369 (Nev. 1996) . . . . . . . . . . . . . . . . . . . . . . . 3
Constitutional Provisions
U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Federal Statutes
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 2254(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 2254(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
xi
Cited Authorities
Page
State Statutes
NRS § 193.130(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
NRS § 200.366(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
NRS § 200.366(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
NRS § 200.368(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1
Petitioner Mazen Alotaibi respectfully prays that a
Writ of Certiorari issue to review the decision of the Ninth
Circuit Court of Appeals entered on January 12, 2026.
OPINIONS BELOW
The Ninth Circuit Court of Appeals issued its decision
in this case on January 12, 2026. A copy of the opinion is
attached as Appendix A. That court denied rehearing en
banc on March 26, 2026. The order denying rehearing is
attached as Appendix M. The District Court denied Mr.
Alotaibi’s habeas petition on April 8, 2024. The order
denying relief is attached as Appendix C.
The Nevada Supreme Court affirmed Mr. Alotaibi’s
conviction on direct appeal on February 28, 2017. A copy of
that opinion is attached as Appendix K. In a superseding
opinion, the Nevada Supreme Court again affirmed the
conviction in an opinion dated November 9, 2017. A copy
of that opinion is attached as Appendix H.
Mr. Alotaibi sought post-conviction relief in Nevada
state court. The state trial court issued an order denying
relief on September 5, 2019. A copy of that order is
attached as Appendix G. The Nevada Supreme Court
affirmed that ruling in an opinion dated October 16, 2020.
A copy of that opinion is attached as Appendix F.
JURISDICTION
The Ninth Circuit Court of Appeals issued its opinion
on January 12, 2026. That court denied rehearing en banc
on March 26, 2026. This Court has jurisdiction pursuant
to 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the right-to-counsel provision of
the Sixth Amendment to the United States Constitution:
In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of
Counsel for his defence.
It also involves 28 U.S.C. § 2254(d) which provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to a
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim –
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
3
STATEMENT OF THE CASE
A. The Trial Evidence And The Evidence Of Consent.
Under Nevada law, the crime of statutory sexual
seduction is defined as “consensual sex with an under-aged
person.” Quillen v. State, 112 Nev. 1369, 1383 (Nev. 1996).
The punishment is one to five years in prison. Nevada
Revised Statutes (“NRS”) § 200.368(1) and § 193.130(2)(c).
The far more serious crime of sexual assault of a minor is
defined as sexual conduct with a minor that is “against the
will of the victim.” NRS § 200.366(1). The punishment is a
mandatory life sentence with parole eligibility in 35 years.
NRS § 200.366(3)(c). The difference between the two
offenses is consent – if the sexual conduct is consensual,
the offense is sexual seduction.
As relevant here, petitioner was charged with two
counts of the more serious offense – sexual assault –
occurring on December 31, 2012. 3 ER 246.1 At the time
of the charged crimes, petitioner was a Saudi national and
a pilot in the Saudi Air Force, stationed in San Antonio,
Texas and receiving training on an F-15 aircraft. 4 ER
638-643. He and two friends drove to Las Vegas, Nevada,
arriving in the early morning of December 31 around 2
a.m. 5 ER 757-760. They had drinks at several hotels until
dawn before heading to the Circus Circus Hotel where
they were staying on the sixth floor. 5 ER 762-770.
As they got off the elevator, they saw 13-year-old A.J.
Dang sitting on a couch in the hall near the elevator. 3 ER
1. References to “ER” refer to the Excerpt of Record filed
in the Ninth Circuit Court of Appeals.
4
321; 5 ER 775. A.J. later told police that petitioner forcibly
dragged him down the hall by his clothing and into his
hotel room. 3 ER 336-337, 349. But as A.J. himself would
admit at trial – and as video footage from the hotel would
show – he was lying. 3 ER 341.
At trial, A.J. no longer advanced the forcible “dragging
down the hall” story. Instead, he admitted that he asked
petitioner if he had any marijuana. 3 ER 322. Petitioner
said he did and A.J. followed him to his hotel room. 3 ER
322. The forcible dragging incident A.J. described to police
simply did not happen.
But this was not the only portion of A.J.’s statement to
police which was misleading. Thus, A.J. did not tell police
that before the sexual acts occurred, he had already been
in petitioner’s room once, left with petitioner to go outside
and smoke marijuana and voluntarily returned a second
time. 3 ER 349, 351-352. But that is exactly what the video
evidence showed. 3 ER 322-323, 382. And in the elevator
on the way down to smoke marijuana, cameras recorded
petitioner kissing A.J.’s neck. 3 ER 323-325, 384. Outside,
the two smoked the marijuana together. 3 ER 325.
Of course, the hotel was full of people from whom A.J.
could have sought help. Instead, after smoking, A.J. simply
walked through the hotel with petitioner and went back
to his room on the sixth floor. According to A.J., while
in the elevator petitioner said he would give A.J. money
and weed to have sex with him. 3 ER 326. A.J. agreed. 3
ER 326. Once back in the room, petitioner and A.J. went
immediately to the bathroom and closed the door. 3 ER
328-329. A.J. testified that petitioner put marijuana on the
counter and told A.J. he would take care of him, offering
him $300. 3 ER 329-331.
5
At trial, there was no dispute that inside the bathroom
A.J. performed oral sex on petitioner and petitioner
had anal sex with A.J. 4 ER 701-718. According to A.J.,
however, petitioner ignored A.J.’s requests to stop and
forced him to engage in these acts. 3 ER 330-332, 334.
A.J. ran out of the room, took the elevator to the lobby and
told security guard Eric Laskin that he had been raped.
3 ER 333-336, 398. Laskin saw no signs of injury and
recalled that A.J. was not crying and instead was “calm
and collected.” 3 ER 399-400. Hotel security detained
petitioner and he was arrested later that day. 4 ER 481. 2
At the police station, petitioner waived his Miranda
rights and voluntarily spoke with police. 4 ER 699-700.
He admitted engaging in the sex acts described by A.J.
but said that A.J. had agreed to the acts in exchange for
marijuana and cash. 4 ER 701-718. In other words, at all
points petitioner admitted the lesser offense of sexual
seduction.
B. The Instructional Conference And Counsel’s
Promise To Discuss The Lesser-Offense Instruction
With Defendant.
At the end-of-trial instructional conference, the trial
court was very much aware of the substantial evidence of
consent. After all, video evidence showed A.J. lied about
being forcibly dragged down the hall, A.J. made no attempt
to seek help in the lobby before returning to petitioner’s
hotel room, he returned voluntarily to petitioner’s room
2. Witnesses in the hotel room heard no talking, screaming
or anyone asking for help. 5 ER 799. A.J. was not crying when he
left the bathroom. 5 ER 810.
6
and he admitted agreeing to have sex for money. As
such, the court asked defense counsel whether he wanted
jurors instructed on the lesser offense of statutory sexual
seduction. 6 ER 884, 887. In light of this evidence, under
state law the trial court “was inclined to allow it . . . if
proffered by the defense [because] . . . there is testimony
in this case of consent by the victim.” 6 ER 884.
Petitioner was not at the instructional conference
when the lesser offense option was discussed. Accordingly,
when he finally arrived in court near the end of the
instructional conference, the trial judge explained that he
had ordered defense counsel to advise him over the lunch
break of what had occurred:
The only reason we started without you is
[defense counsel] has agreed that he’s going
to go over every single thing as well as all the
instructions . . . with you with the presence of
the interpreter.
6 ER 888. After the lunch break, defense counsel did not
request instructions on statutory sexual seduction and
none were given. 6 ER 903-904.
Jurors convicted on both counts of sexual assault. The
trial court imposed concurrent life terms with eligibility
for parole in 35 years.
C. State Post-Conviction Proceedings.
Petitioner sought post-conviction relief in state
court alleging ineffective assistance of counsel. Under
Strickland, 466 U.S. 668, this claim required petitioner
7
to establish two elements: (1) counsel’s performance in
failing to consult with him fell below the standard of care
and (2) there was a reasonable probability petitioner would
have requested (and the trial court would have given) the
lesser-offense instruction.
As to the performance element, petitioner contended
that despite counsel’s explicit promise to the trial court,
he had failed to consult petitioner about instructions on
the lesser offense of statutory sexual seduction. 2 ER 8186. At the subsequent evidentiary hearing, trial counsel
explained that petitioner was only the second criminal
defendant he had ever represented. 7 ER 1214-1218,
1220-1221. Counsel recalled the instructional conference,
but explained that he did not discuss the lesser offense
instruction with petitioner as he had promised, and was
certain that he did not explain the stark sentencing
differences between a conviction for sexual seduction and
the charged offenses of sexual assault. 7 ER 1239-1241.
When directly asked whether he explained the sexual
seduction instruction to petitioner as the judge ordered,
counsel testified “no.” Ibid.
Defense counsel explained his failure, admitting that
at the time of trial he thought the punishment for sexual
seduction had a 10-year maximum. 7 ER 1239. Because
petitioner had previously rejected a plea offer carrying
a possible 10-year sentence, counsel believed petitioner
would also reject instructions on sexual seduction since
(in counsel’s mistaken view) sexual seduction also had a
10-year maximum. 7 ER 1241.
To his credit, counsel admitted that he was now aware
that the penalty for sexual seduction was only one to five
8
years. 7 ER 1239. Which meant that there was a “30-year
differential” between the minimum time served for sexual
assault (35 years) and the maximum time which could be
served for sexual seduction (five years). 7 ER 1242. And
even though years had passed since trial, counsel recalled
the substantial anti-Arab bias in the jury venire from
which the petit jury would be selected. 7 ER 1244-1245.
As to prejudice, the record contained substantial
evidence of what courts have long described as objective
evidence showing petitioner would have requested the
lesser instructions. This objective evidence included:
• The vast disparity in punishment between
the great offense (life in prison with parole
eligibility in 35 years) and the lesser offense
(one to five years).
• This was not a case where petitioner
maintained he was innocent of wrongdoing.
As noted, from the very beginning of
this case petitioner at all times admitted
committing sexual acts with a minor. An
instruction on sexual seduction would simply
allow jurors to convict petitioner of what
he admitted to doing. And absent such an
instruction, jurors would be asked to set him
scot-free even though he admitted having
oral and anal sex with an underage, 13-yearold boy.
• Hotel video footage showed that the victim
had lied to police about being forced into
petitioner’s hotel room. This video evidence
9
was part of the reason the judge was inclined
to give the lesser offense instruction.
• Petitioner is a citizen of Saudi Arabia and
of Arab descent. The trial voir dire raised
the distinct possibility of anti-Arab bias
in the jury venire, suggesting it would be
dangerous to rely on jurors to acquit if put
in an all-or-nothing position.
The state trial court agreed that counsel’s performance
was not based on strategy but, instead, fell below the
appropriate standard of care. 1 ER 25-37. The state
court nevertheless denied the petition because it believed
counsel’s error was harmless. Ibid. On appeal, the state
court held that evidence from petitioner himself was
required to establish prejudice under Strickland:
At the evidentiary hearing conducted in this
matter, Alotaibi did not present evidence
regarding whether he would have agreed
to request [the statutory sexual seduction]
instruction. 1 ER 24. 3
D. The Panel Decision.
Petitioner then sought habeas relief in federal court,
again contending that counsel provided ineffective
assistance in failing to advise petitioner of and request an
instruction on statutory sexual seduction. As noted above,
3. Mr. Alotaibi’s subsequent Petition for Review to exhaust
state remedies in the Nevada Supreme Court was summarily
denied on February 19, 2021. 1 ER 21.
10
the panel held that the state court was not unreasonable in
requiring petitioner to submit a declaration or testimony
in order to prove prejudice:
The state court did not unreasonably determine
the facts when it denied the petition because
Alotaibi failed to submit a declaration or
testimony stating he would have requested the
jury instruction if given the option. Without
such proof, Alotaibi did not establish prejudice
because, absent a showing that he would have
asked counsel to request the sexual-seduction
lesser-related jury instruction, he did not show
a reasonable probability of a different outcome
at trial. Alotaibi v. Breitenbach, 2026 WL 84567
at * 1 (9th Cir. 2026)
This Petition for Certiorari follows.
REASONS FOR GRANTING THE WRIT
The state courts did not consider any of the objective
evidence establishing prejudice, ruling instead that
petitioner could not establish prejudice absent a
declaration or testimony from the petitioner himself.
Certiorari is appropriate. As discussed more fully below,
this Court has already rejected the suggestion that
when a defendant raises a claim of ineffective assistance,
there is any single type of evidence that is a mandatory
prerequisite for relief. Instead, in assessing such claims,
reviewing courts are required to consider the totality of
the evidence. The state courts’ refusal to do so here was
contrary to and an unreasonable application of federal law.
11
Indeed, under the facts of this case, the state court’s
approach was especially troubling. Where (as here) a
defendant claims that counsel provided substandard
advice, federal courts throughout the country – including
this Court – have recognized that a declaration from
a defendant as to what he or she would have done with
different advice is a “self-serving,” “post hoc assertion”
which is insufficient to show prejudice and not a basis
to vacate a criminal conviction. The state courts
unreasonably applied federal law in holding that evidence
routinely rejected as self-serving and insufficient is
actually a prerequisite to relief. And the state court’s
holding is equally indefensible in light of this Court’s
long recognition that like any other fact, a defendant’s
intent or state of mind may be proven by either direct or
circumstantial evidence. The state courts’ contrary rule
– insisting that direct evidence from petitioner as to this
state of mind was required to establish prejudice – was a
patently unreasonable application of federal law.
I.
NEVADA’S REQUIREMENT THAT A HABEAS
PETITIONER SUBMIT DIRECT EVIDENCE
– IN THE FORM OF A DECLARATION OR
TESTIMONY – TO ESTABLISH PREJUDICE
IN ASSERTING A CLAIM OF INEFFECTIVE
ASSISTANCE IS CONTRARY TO CLEARLY
ESTABLISHED FEDERAL LAW.
28 U.S.C. § 2254(d)(1) precludes federal habeas relief
on any claim adjudicated on the merits in state court
unless the state decision “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law.” The panel here held
that the state court was not unreasonable in requiring
12
that in order to prove prejudice from counsel’s failure to
consult with him, petitioner was required to “submit a
declaration or testimony stating he would have requested
the jury instruction if given the option.” Certiorari is
proper because that rule is contrary to or an unreasonable
determination of federal law which has never imposed a
per se requirement that a defendant testify to establish
prejudice in an ineffective assistance of counsel case.
The starting point for this analysis is this Court’s
decision in Strickland itself. There, the Court emphasized
that in assessing whether defendant had carried the
burden of proving prejudice, a reviewing court must
consider “the totality of the evidence.” 466 U.S. at 695.
Based on the totality of the evidence, “a court making
the prejudice inquiry must ask if the defendant has met
the burden” of showing prejudice. 466 U.S. at 696. “Most
important, in adjudging a claim of actual ineffectiveness
of counsel, a court should keep in mind that the principles
we have stated do not establish mechanical rules.” Ibid.
In accord with the admonition that Strickland did not
establish “mechanical rules” for litigating claims of
ineffective assistance, the Court has never required
that a defendant present any specific type of evidence to
establish either the performance or prejudice prongs of
the Strickland analysis.
In Dunn v. Reeves, 594 U.S. 731 (2021) the Court
agreed that Strickland did not require any single type
of evidence as a prerequisite to relief. There, defendant
was convicted of murder and sentenced to death. In
post-conviction proceedings he contended trial counsel
rendered ineffective assistance in failing to develop and
present certain mitigating evidence at the penalty phase
13
of trial. 594 U.S. at 733. Defendant did not call his trial
lawyers to testify. The Alabama state courts denied relief.
The Eleventh Circuit reversed, interpreting the state
court as having applied an improper blanket rule that a
Strickland petitioner could not prove ineffective assistance
unless he presented testimony from his lawyers. Id. at 733.
This Court granted certiorari and reversed. But
the Court did not hold that Strickland permitted state
courts to require a specific type of testimony as a
prerequisite to relief. Instead, it held the appellate court
“mischaracter[ized] . . . the state-court opinion” as having
set forth a “blanket rule” requiring Strickland defendants
to present testimony from their trial lawyers. Id. at 742.
And while dissenting Justice Sotomayor (joined by Justice
Kagan) flatly disagreed that the appellate court had
mischaracterized the state-court opinion, she noted the
majority at least “implicitly acknowledges [that] a per se
rule that a habeas petitioner’s claim fails if his attorney did
not testify at an evidentiary hearing is flatly incompatible
with Strickland.” Id. at 745 (Sotomayor, J., dissenting.)
There are numerous situations where, in assessing
prejudice from a defense lawyer’s substandard conduct,
a reviewing court must decide what defendant would
have done had the lawyer performed competently. For
example, when a defendant pleads guilty after receiving
incorrect advice, a reviewing court must decide whether
the defendant would have gone to trial with competent
advice. Similarly, when a defendant rejects a plea and
goes to trial after receiving incorrect advice, a court
must consider whether defendant would have accepted
the plea with competent advice. And, as here, when a
lawyer improperly fails to discuss a trial court’s offer of
14
lesser-offense instructions, the court must decide whether
defendant would have requested the instruction. But as
Strickland itself made clear, there are no “mechanical
rules” or mandatory evidentiary prerequisites in the
Strickland calculus. Instead, reviewing courts must
simply consider “the totality of the evidence.”
The state court here embraced the precise approach
to Strickland rejected by Strickland itself and by both the
majority and dissent in Dunn. The state court did not look
at the “totality of the evidence” as Strickland requires,
refusing to consider any of the objective evidence in the
record which supported a finding of prejudice. Instead,
the state court concluded that absent personal testimony
from petitioner himself, Strickland prejudice could not
be shown. Certiorari is proper because the state court’s
approach is contrary to, or an unreasonable application,
of both Strickland and Dunn.
Indeed, in light of the particular evidence required
by the state-court rule in this case – direct evidence from
petitioner in the form of testimony or a declaration as to
what he or she would have done with different advice from
counsel – the state court’s departure from Strickland
is particularly unreasonable for two similar reasons.
First, this type of evidence has long been recognized as
self-serving, unpersuasive and insufficient to establish
prejudice.
For example, in Lee v. United States, 582 U.S. 357
(2017) this Court made clear that given the “strong
societal interest in finality,” criminal convictions (in that
case, a guilty plea) should not be reversed “solely because
of post hoc assertions from a defendant about how he
15
would have [acted] but for his attorney’s deficiencies.”
Id. at 369. In accord with Lee, circuit courts around the
country have similarly recognized that a defendant’s
declaration as to what he would have done with different
advice from counsel is self-serving and not credible. See
United States v. Valdez, 973 F.3d 396, 403 (5th Cir. 2020)
(such declarations are “self-serving, post hoc assertions”);
Merzbacher v. Shearin, 706 F.3d 356, 367 (4th Cir. 2013)
(“self-serving” and “subject to heavy skepticism”); Toro
v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (“selfserving”). See also Turner v. Calderon, 281 F.3d 851,
879 (9th Cir. 2002) (capital defendant alleges he received
ineffective assistance in rejecting a plea offer for second
degree murder, defendant provides a declaration that he
was never told he could be sentenced to death if he rejected
plea and went to trial; held, “[s]elf-serving statements by
a defendant that his conviction was constitutionally infirm
are insufficient to overcome the presumption of regularity
accorded state convictions.”) Instead of relying on such
“self-serving” statements from the defendant, courts
look instead to “objective evidence” in determining what
course a defendant would have taken with proper advice
from counsel. See Toro, 940 F.2d at 1068; Paters v. United
States, 159 F.3d 1043, 1047 (7th Cir. 1998); United States
v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998). See also
Merzbacher, 706 F.3d at 367; Johnson v. Duckworth, 793
F.2d 898, 902 n.3 (7th Cir. 1991); Cullen v. United States,
194 F.3d 401, 407 (2d Cir. 1999); Walters v. Martin, 18
F.4th 376, 382 (4th Cir. 2021).
Among the types of objective evidence considered
central to the prejudice calculus is whether there is a
significant disparity between the potential sentences.
Gordon, 156 F.3d at 381. When that disparity is large
16
enough, it “provides sufficient objective evidence to
establish a reasonable probability that the outcome of
the proceedings would differ.” Gordon, 156 F.3d at 381
(difference of 12 to 17 years in potential sentences sufficient
to show reasonable probability of a different result). Cf.
Chacon v. Wood, 36 F.3d 1459, 1464-1465 (9th Cir. 1994)
(difference of 10 years in potential sentences sufficient
to show “gross mischaracterization” for Strickland
performance-prong analysis); United States v. Davis,
428 F.3d 802, 804-806, 808 (9th Cir. 2005) (difference
of likely probation versus statutory maximum of eight
years sufficient to show “gross mischaracterization” for
Strickland performance-prong analysis). Other objective
factors relevant to assessing whether a defendant would
have agreed to a lesser charge include (1) whether
defendant has made a “steadfast and unmoving claim[]
of innocence,” and (2) the strength of the evidence. Jones
v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997).
Here, the objective evidence which state courts
refused to consider was more than sufficient to support
a finding of prejudice. The disparity in sentences was
30 years. Moreover, defendant never claimed innocence
but at all times affirmatively conceded guilt of the lesser
offense. And as the trial judge noted, the evidence was
plainly sufficient for jurors to find consent and convict on
the lesser offense. Juror comments made after trial bear
this out; after trial jurors told trial counsel they “found
[A.J.] to be a liar and specifically asked why there were
no instructions on ‘statutory rape.’” 7 ER 1245-1247.
In short, the state court (1) required petitioner to
produce evidence which this Court, and virtually every
circuit court, have variously described as “self-serving”
17
“post hoc assertions” which are “insufficient” to establish
prejudice in the first instance and (2) refused to consider
the precise type of objective evidence courts around
the country have long relied on to determine prejudice.
This was an unreasonable application of Strickland’s
requirement that courts consider “the totality of the
evidence.”
The second reason the state court’s departure from
Strickland is particularly troubling here also relates
to the nature of the evidence which the state court
required as part of the Strickland prejudice calculus.
The requirement that petitioner present direct evidence
in order to prove prejudice ignores this Court’s long
recognition that circumstantial evidence is “intrinsically
no different from testimonial evidence” (Holland v. United
States, 348 U.S. 121, 140 (1954)) and is “not only sufficient,
but may also be more certain, satisfying and persuasive
than direct evidence.” Desert Palace, Inc. v. Costa, 539
U.S. 90, 100 (2003). As the Court has frequently concluded
in applying this principle, a defendant’s state of mind
need not be proven with direct evidence, but can instead
be proven with circumstantial evidence. McFadden v.
United States, 576 U.S. 186, 195, n.3 (2015); United States
v. Santos, 553 U.S. 507, 520 (2008). Circuit courts follow
this same principle. See, e.g., United States v. Nivica, 887
F.2d 1110, 1113 (1st Cir. 1989); United States v. Bryant,
655 F.3d 232, 243 (3d Cir. 2011); United States v. Morin,
627 F.3d 985, 999, n.4 (5th Cir. 2010); United States v.
Scruggs, 549 F.2d 1097, 1104 (6th Cir. 1977).
Here, petitioner relied on objective circumstantial
evidence to prove what he would have done had counsel
discussed the lesser offense with him. This evidence
18
– including the gross disparity between a 35-year-tolife sentence and a determinate term with a five-year
maximum, the fact that petitioner had never claimed
innocence but, instead, had at all times admitted the
lesser offense and the fact that jurors were unlikely to
set free a man who admitted having sex with a minor – all
supported a conclusion that “no reasonable person would
have rejected” the lesser offense. United States v. Kearn,
90 F.4th 1301, 1304 (10th Cir. 2024). In requiring direct
evidence to prove Strickland prejudice, and effectively
holding that circumstantial evidence alone is insufficient,
the state court ignored longstanding federal law that facts
may be proven by either direct or circumstantial evidence
and unreasonably applied Strickland’s requirement for
courts assessing prejudice to consider “the totality of the
evidence.”
CONCLUSION
For all these reasons certiorari is appropriate.
Respectfully submitted,
Cliff Gardner
Counsel of Record
Lazuli Whitt
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093
casetris@aol.com
Counsel for Petitioner
Mazen Alotaibi
DATED: June 16, 2026
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A – MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT, FILED
JANUARY 12, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B – ORDER OF THE UNITED
S TAT E S C O U RT O F A P P E A L S F O R
T H E N I N T H C I R C U I T, F I L E D
OCTOBER 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5a
APPENDIX C – ORDER OF THE UNITED
S TAT E S D I S T R I C T C O U RT F O R
THE DISTRICT OF NEVADA, FILED
APRIL 8, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7a
APPENDIX D – ORDER DENYING PETITION
FOR REVIEW OF THE SUPREME COURT
OF THE STATE OF NEVADA, FILED
FEBRUARY 19, 2021 . . . . . . . . . . . . . . . . . . . . . . . . 35a
APPENDIX E – ORDER DENYING
REHEARING OF THE COURT OF APPEALS
OF THE STATE OF NEVADA, FILED
DECEMBER 18, 2020 . . . . . . . . . . . . . . . . . . . . . . . 37a
APPENDIX F – ORDER OF AFFIRMANCE OF
THE COURT OF APPEALS OF THE STATE
OF NEVADA, FILED OCTOBER 16, 2020 . . . . . 38a
APPENDIX G – DECISION AND ORDER OF
THE DISTRICT COURT, CLARK COUNTY,
NEVADA, DATED SEPTEMBER 5, 2019 . . . . . . 41a
ii
Table of Appendices
Page
APPENDIX H – OPINION OF THE SUPREME
COURT OF THE STATE OF NEVADA FILED
NOVEMBER 9, 2017 . . . . . . . . . . . . . . . . . . . . . . . . 57a
APPENDIX I – ORDER GRANTING EN BANC
RECONSIDERATION OF THE SUPREME
COURT OF THE STATE OF NEVADA,
FILED NOVEMBER 3, 2017 . . . . . . . . . . . . . . . . . 72a
APPENDIX J – ORDER DENYING
REHEARING OF THE SUPREME COURT
OF THE STATE OF NEVADA, FILED
APRIL 26, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74a
APPENDIX K – ORDER OF AFFIRMANCE OF
THE SUPREME COURT OF THE STATE OF
NEVADA, FILED FEBRUARY 28, 2017 . . . . . . . 77a
APP EN DI X L – F I N DI N GS OF FA C T,
CONCLUSIONS OF LAW AND ORDER
AND DECISION OF THE DISTRICT COURT
OF CLARK COUNTY, NEVADA, FILED
NOVEMBER 18, 2014 . . . . . . . . . . . . . . . . . . . . . . . 81a
APPENDIX M – ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED MARCH 26, 2026 . . . 107a
1a
A
APPENDIX A —Appendix
MEMORANDUM
OF THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED JANUARY 12, 2026
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 24-2523
D.C. No. 2:21-cv-01281-GMN-BNW
MAZEN ALOTAIBI,
Petitioner-Appellant,
v.
NETHANJAH BREITENBACH;
CHARLES DANIELS; LOVELOCK
CORRECTIONAL CENTER,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted November 20, 2025
San Jose, California
Filed January 12, 2026
2a
Appendix A
MEMORANDUM*
Before: SCHROEDER and FRIEDLAND, Circuit
Judges, and SCHREIER, District Judge.**
A jury convicted Petitioner, Mazen Alotaibi, on
multiple counts of sexual assault and lewdness. He
appeals the denial of his habeas corpus petition, brought
under 28 U.S.C. § 2254, alleging ineffective assistance
of trial counsel. Under § 2254(d), our review is “doubly
deferential” because we apply deference under both
the Antiterrorism and Effective Death Penalty Act and
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Clark v. Sweeney, 607 U.S. 7,
10, 146 S.Ct. 410, 223 L.Ed.2d 157 (2025) (per curiam)
(quoting Dunn v. Reeves, 594 U.S. 731, 739, 141 S.Ct. 2405,
210 L.Ed.2d 812 (2021) (per curiam)). The state court’s
decision to affirm Alotaibi’s conviction was not “based
on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm.
We “look through” to the last reasoned state court
decision. In Alotaibi’s case, that was the Nevada Court
of Appeals’ decision, which addressed only the prejudice
prong of the Strickland analysis. See Wilson v. Sellers,
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Karen E. Schreier, United States District
Judge for the District of South Dakota, sitting by designation.
3a
Appendix A
584 U.S. 122, 125, 138 S.Ct. 1188, 200 L.Ed.2d 530 (2018)
(“[T]he federal [habeas] court should ‘look through’
the unexplained decision to the last related state-court
decision that does provide a relevant rationale.”). The state
court held that because Alotaibi did not present evidence
regarding whether he would have agreed to request an
instruction on statutory sexual seduction, Alotaibi “did
not demonstrate a reasonable probability of a different
outcome at trial but for counsel’s failure to discuss this
issue with him.”
Alotaibi argues that his trial counsel was ineffective for
failing to advise him about and request a jury instruction
on the lesser-related offense of statutory sexual seduction.
Even assuming counsel’s performance was deficient, the
claim fails on the prejudice prong.
To est abl ish prejud ice, “a [pet it ioner] must
demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.’” Bejarano v. Reubart, 136 F.4th
873, 890 (9th Cir. 2025) (alteration in original) (quoting
Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178
L.Ed.2d 624 (2011)). The state court did not unreasonably
determine the facts when it denied the petition because
Alotaibi failed to submit a declaration or testimony stating
he would have requested the jury instruction if given
the option. Without such proof, Alotaibi did not establish
prejudice because, absent a showing that he would have
asked counsel to request the sexual-seduction lesserrelated jury instruction, he did not show a reasonable
probability of a different outcome at trial. See id.
4a
Appendix A
And contrary to Alotaibi’s contentions, the state court
was not required to expressly address every piece of
evidence. See Taylor v. Maddox, 366 F.3d 992, 1001 (9th
Cir. 2004) (“[S]tate courts are not required to address
every jot and tittle of proof suggested to them, nor need
they make detailed findings addressing all the evidence
before them.” (cleaned up)), overruled on other grounds
by Cullen v. Pinholster, 563 U.S. 170, 185, 131 S.Ct. 1388,
179 L.Ed.2d 557 (2011). On this record, we cannot say
that “every ‘fairminded jurist’ would agree that every
reasonable lawyer would have made a different decision.”
Clark, 607 U.S. at 10, 146 S.Ct. 410 (quoting Dunn, 594
U.S. at 740, 141 S.Ct. 2405). Because Alotaibi failed to
establish that the Nevada Court of Appeals reached an
unreasonable finding on the prejudice prong, denial of his
habeas petition was appropriate.
AFFIRMED.
5a
B THE UNITED
APPENDIX B —Appendix
ORDER OF
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, FILED OCTOBER 30, 2024
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 24-2523
D.C. No. 2:21-cv-01281-GMN-BNW
District of Nevada, Las Vegas
MAZEN ALOTAIBI,
Petitioner-Appellant,
v.
NETHANJAH BREITENBACH; et al.,
Respondents-Appellees.
Filed October 30, 2024
ORDER
Before: RAWLINSON and BENNETT, Circuit Judges.
The request for a certificate of appealability (Docket
Entry No. 3) is granted with respect to the following
issue: whether trial counsel was ineffective for failing to
advise appellant about and request a jury instruction on
the lesser-related offense of statutory sexual seduction.
See 28 U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-1(e).
6a
Appendix B
The opening brief is due February 25, 2025; the
answering brief is due March 27, 2025; the optional reply
brief is due within 21 days after service of the answering
brief.
The Clerk will serve on appellant a copy of the “After
Opening a Case—Counseled Cases” document.
If Nethanjah Breitenbach or Charles Daniels is
no longer an appropriate appellee in this case, counsel
for appellees must notify this court by letter of the
appropriate substitute party within 21 days of the filing
date of this order. See Fed. R. App. P. 43(c).
7a
C THE UNITED
APPENDIX C —Appendix
ORDER OF
STATES DISTRICT COURT FOR THE DISTRICT
OF NEVADA, FILED APRIL 8, 2024
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 2:21-cv-01281-GMN-BNW
MAZEN ALOTAIBI,
Petitioner,
v.
BRIAN WILLIAMS, et al.,1
Respondents.
Filed April 8, 2024
ORDER
Counseled Petitioner Mazen Alotaibi was sentenced
to life in prison with the possibility of parole after 35
years after he was found guilty in Nevada state court of
Burglary, First-degree Kidnapping, Sexual Assault with a
1. The Nevada Department of Corrections inmate database
states that Alotaibi is incarcerated at Lovelock Correctional
Center. Presently, Nethanjah Breitenbach is the Warden for that
facility. At the end of this order, the Court directs the Clerk of the
Court to substitute Nethanjah Breitenbach as a respondent for
Respondent State of Nevada. See Fed. R. Civ. P. 25(d).
8a
Appendix C
Minor Under the Age of 14, Lewdness with a Child Under
the Age of 14, and Coercion. ECF No. 20-20. Alotaibi seeks
a writ of habeas corpus under 28 U.S.C. § 2254 based on
the claim that his trial counsel was ineffective by failing
to advise him about and request a jury instruction on the
lesser-related offense of Statutory Sexual Seduction. ECF
No. 1. The Court finds that habeas relief is not warranted,
so it denies Alotaibi’s Petition, denies him a Certificate of
Appealability, and closes this case.
I.
BACKGROUND2
A.
Relevant facts underlying Alotaibi’s conviction3
Alotaibi’s conviction is the result of events that
occurred in Las Vegas, Nevada, on December 31, 2012.
Alotaibi is a Saudi Arabian national who was a pilot in
the Saudi Air Force stationed in San Antonio, Texas, and
learning English so he could receive technical training on
aircraft that Saudi Arabia bought from the United States.
In late December 2012, Alotaibi traveled from Texas to
California and then to Las Vegas, Nevada, with friends
and acquaintances to celebrate the New Year. Alotaibi
2. The Court makes no credibility determinations or other
factual findings about the truth or falsity of this summary of the
evidence from the state court. This summary is merely a backdrop
to the issues presented in this case. Any failure to mention a
specific piece of evidence does not signify that the Court overlooked
it in considering Alotaibi’s claim.
3. These facts are taken from the trial transcripts. ECF Nos.
1-1 at 164–224, 1-2, 1-3, 1-4-, 1-5, 1-6 at 2–84. The Court generally
cites to these exhibits for this entire subsection.
9a
Appendix C
and his group arrived in Las Vegas around 2:00 a.m. on
December 31, 2012. Alotaibi and his group drank at the
Palms casino and Olympic Garden strip club and, after
dawn, arrived at the Circus Circus hotel where they were
staying.
A.J.,4 a 13-year-old boy, was staying at the Circus
Circus hotel with his grandmother to celebrate the New
Year. A.J. discovered that his friend was also staying at
the hotel, and they made plans to have breakfast together
on December 31. When A.J. arrived at his friend’s hotel
room on the sixth floor that morning, he was told she
was still sleeping. While A.J. waited for her to wake, he
wandered the hotel and eventually returned to the sixth
floor and sat on the couch near the elevator.
Alotaibi exited the elevator while A.J. was waiting and
the two spoke. Alotaibi’s eyes were pink, and he smelled
like marijuana. A.J. followed Alotaibi into the hall and
asked if he had any marijuana. Alotaibi said yes, and they
went to Alotaibi’s room to get it. Other people were also in
the room. Someone asked A.J. his age and A.J. responded
that he was 13.
Alotaibi and A.J. left the room to go outside to smoke
marijuana. In the elevator on the way down, Alotaibi
kissed A.J.’s neck. While Alotaibi and A.J. were smoking
marijuana in an alley, Alotaibi kissed A.J.’s face. When
A.J. stepped away, Alotaibi pulled him closer.
4. The Court refers to the minor only by his initials. See Nev.
Loc. R. IC 6-1(a)(2).
10a
Appendix C
On the way back to the elevator, Alotaibi told A.J.
he’d give him money and marijuana in exchange for sex.
A.J. agreed, but only to trick Alotaibi; he just wanted to
buy marijuana. When they returned to Alotaibi’s room,
Alotaibi told A.J. to go into the bathroom. After speaking
to the other people in the room, Alotaibi entered the
bathroom and put marijuana on the counter.
A lotaibi repeated that he wanted to exchange
marijuana and money for sex. A.J. verbally refused
and tried to leave the bathroom. Alotaibi responded by
increasing the money offered and started kissing A.J.,
who backed away. Alotaibi then removed A.J.’s t-shirt,
pushed down A.J.’s pants, made A.J. bend over, and forced
his penis in A.J.’s mouth.
A.J. yanked away, removing Alotaibi’s penis from his
mouth. A.J. wanted to leave, but Alotaibi was between him
and the door; he didn’t know what to do. Alotaibi pushed
A.J. to the ground on his stomach and placed shampoo on
his penis and A.J.’s anus. Then, Alotaibi penetrated A.J.’s
anus with his penis twice before A.J. pushed Alotaibi away,
got his clothes on, and ran to the elevator.
A.J. immediately told a security officer in the hotel that
he had been raped and told the hotel’s security manager
and security supervisor that he had gone willingly into
Alotaibi’s room to get high when it happened. A.J. later
told detectives that Alotaibi had dragged him through the
hall by his clothes and into the room, and omitted that he
had smoked marijuana with Alotaibi. Surveillance video
revealed that Alotaibi didn’t drag A.J. down the hall or
11a
Appendix C
pull him into the room. A.J. testified that he lied to the
detectives because his grandmother was present when he
was speaking to them, and he didn’t want her to know that
he smoked marijuana or to get in trouble for smoking it.
The State’s forensic expert testified that Alotaibi’s
DNA was found on A.J.’s testicles and inside A.J.’s boxer
shorts. The registered nurse who examined A.J. testified
that he had multiple tears on his anus that were consistent
with the forced digital and penile penetration of the
anus that he described to her. The nurse observed that a
laceration on A.J.’s anus was freely bleeding, and another
laceration had clotted blood. She also observed that A.J.
had bruising on his buttocks consistent with the closedfist punch that he described to her. She also observed that
A.J. had a glistening wet appearance to his rectal area
consistent with the lubricant that he described to her. The
nurse observed that A.J. had a contusion on the soft pallet
of his throat consistent with the forced penile penetration
of the mouth that he described to her. And she observed
that A.J. reported being in significant pain.
After he was arrested, Alotaibi told police several
times during his interview that he did not use any force
on A.J. Alotaibi stated that he had been awake the entire
night, had been drinking, and didn’t fully remember what
happened because he was drunk. Alotaibi said that A.J.
wanted marijuana from him. Alotaibi admitted that he put
his penis into A.J.’s anus for a second or two. Alotaibi also
admitted that he put his penis in A.J.’s mouth.
12a
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B. Procedural history
Alotaibi was charged with Burglary, First-degree
Kidnapping, two counts of Sexual Assault with a Minor
Under the Age of 14, four counts of Lewdness with a
Child Under the Age of 14, and Coercion. ECF No. 1-1
at 5–8. Following a jury trial, Alotaibi was found guilty
on all charges except two of the Lewdness counts5 and
sentenced to life in prison with the possibility of parole
after 35 years. ECF Nos. 18-19, 20-20. He appealed, and
the Nevada Supreme Court affirmed the judgment of
conviction in an en banc decision. ECF No. 22-16.
Alotaibi then filed a state habeas corpus petition.
ECF No. 1-1 at 17–25. The state district court denied the
petition after conducting an evidentiary hearing, and
the Court of Appeals of the State of Nevada affirmed
that denial. ECF No. 1-1 at 27–47. The Nevada Supreme
Court denied Alotaibi’s petition for review in a summary
decision. ECF No. 1-1 at 87.
Alotaibi timely filed his federal Habeas Corpus
Petition on July 6, 2021. See ECF No. 1. Respondents
answered the Petition. ECF No. 16. And Alotaibi filed a
reply. ECF No. 27. Alotaibi asserts a single ground for
relief: denial of effective assistance of counsel because
trial counsel failed to advise him about and request a
jury instruction on the lesser-related offense of Statutory
Sexual Seduction.
5. Alotaibi was found not guilty of Lewdness with a Child
Under the Age of 14 under Counts 4 and 6 and guilty of Lewdness
with a Child Under the Age of 14 under Counts 7 and 8. ECF No.
18-19 at 3–4.
13a
Appendix C
II. LEGAL STANDARDS
A.
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 grant habeas
relief on that claim only in limited circumstances. Habeas
relief may be granted if the state court’s adjudication
“resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States[.]” 28 U.S.C. § 2254(d)(1). Or habeas relief may be
granted if the state court’s adjudication “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.” Id. at § 2254(d)(2).
A state court decision is “contrary to” clearly
established federal law if it applies a rule that contradicts
the governing law established in Supreme Court cases or
if the decision addresses facts materially indistinguishable
from a Supreme Court case but reaches a different
conclusion. Brown v. Payton, 544 U.S. 133, 141 (2005).
A state court decision is an unreasonable application of
clearly established Supreme Court precedent “if the state
court identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Lockyer
v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams v.
Taylor, 529 U.S. 362, 413 (2000)). “‘[C]learly established
Federal law’ for purposes of § 2254(d)(1) includes only
14a
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‘the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions.’” White v. Woodall, 572 U.S. 415, 419
(2014) (quoting Howes v. Fields, 565 U.S. 499, 505 (2012)).
And an “‘unreasonable application of’ those holdings
must be ‘objectively unreasonable,’ not merely wrong;
even ‘clear error’ will not suffice.” White, 572 U.S. at 419
(quoting Lockyer, 538 U.S. at 75–76). Where no Supreme
Court decision squarely addresses “the specific question
presented” by a habeas petitioner, the state court’s decision
cannot be contrary to, or an unreasonable application of,
Supreme Court precedent. Woods v. Donald, 575 U.S. 312,
317 (2015) (quoting Lopez v. Smith, 574 U.S. 1, 4 (2014)
(per curiam)); see also Wright v. Van Patten, 552 U.S. 120,
125–26 (2008); but see Marshall v. Rodgers, 569 U.S. 58, 62
(2013) (“[T]he lack of a Supreme Court decision on nearly
identical facts does not by itself mean that there is no
clearly established federal law, since ‘a general standard’
from this Court’s cases can supply such law.”) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To obtain federal habeas relief, “a state prisoner
must show that the state court’s ruling on the claim
being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White, 572 U.S. at 419–20
(cleaned up) (quoting Harrington v. Richter, 562 U.S.
86, 103 (2011)); see also Yarborough, 541 U.S. at 664. The
Supreme Court has explained “that even a strong case for
relief does not mean the state court’s contrary conclusion
was unreasonable.” Harrington, 562 U.S. at 102 (citing
Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563
15a
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U.S. 170, 181 (2011) (describing the standard as “difficult
to meet” and “highly deferential,” which “demands that
state-court decisions be given the benefit of the doubt”
(internal quotation marks and citations omitted)).
B. Federal habeas review of an ineffectiveassistance claim
The Sixth Amendment guarantees the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S.
668, 686 (1984), superseded on other grounds by AEDPA.
“The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Id.
To establish ineffective assistance of counsel, a petitioner
must demonstrate that (1) counsel’s performance was
deficient and (2) the deficient performance prejudiced the
defense. Id. at 687.
To prove deficient performance, a petitioner must
demonstrate that counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms. Id. at 688; see also Yarborough v.
Gentry, 540 U.S. 1 (2003) (per curium); Bobby v. Van Hook,
558 U.S. 4, 13–14 (2009) (per curium) (Alito, J., concurring)
(noting that guidelines such as those promulgated by the
American Bar Association, purporting to establish what
reasonable attorneys would do, may be helpful but are
not the test for determining whether counsel’s choices
are objectively reasonable). The relevant inquiry is not
what defense counsel could have done, but rather whether
16a
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the choices made by defense counsel were reasonable.
See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.
1998). “Judicial scrutiny of counsel’s performance must
be highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight.” Strickland,
466 U.S. at 689; see also Wildman v. Johnson, 261 F.3d
832, 838 (9th Cir. 2001); Sanders v. Ratelle, 21 F.3d 1446,
1456 (9th Cir. 1994). The court “must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at 689 (internal
quotation omitted).
To establish that counsel’s deficient performance
prejudiced the defense, a petitioner must show “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694; Lafler v. Cooper,
566 U.S. 156, 162 (2012); Hill v. Lockhart, 474 U.S. 52,
59 (1985). “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.” Strickland, 466 U.S. at 686. The
defendant must show that counsel’s errors were so serious
as to deprive him of a fair trial, a trial whose result is
reliable. Id. at 688.
17a
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Both prongs of the Strickland test must be satisfied to
establish a constitutional violation; thus, a failure to satisfy
either requires that the petitioner’s ineffective assistance
of counsel claim be denied. Strickland, 466 U.S. at 697.
A federal habeas court need not address the prejudice
prong of the Strickland test “if the petitioner cannot even
establish incompetence under the first prong.” Siripongs v.
Calderon, 133 F.3d 732, 737 (9th Cir. 1998). Conversely, the
court “need not determine whether counsel’s performance
was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697. And where a state court
previously adjudicated the claim of ineffective assistance
of counsel under Strickland, establishing that the decision
was unreasonable is especially difficult. See Richter, 562
U.S. at 104–05.
In Richter, the U.S. Supreme Court clarified that
Strickland and § 2254(d) are each highly deferential,
and when the two apply in tandem, review is doubly so.
Id. at 105; see also Cheney v. Washington, 614 F.3d 987,
995 (9th Cir. 2010). The Supreme Court further explained
that “[w]hen § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Richter, 562 U.S. at
105.
III. DISCUSSION
Alotaibi alleges that he was denied effective assistance
because his trial counsel failed to advise him about or
18a
Appendix C
request a jury instruction for the uncharged offense of
Statutory Sexual Seduction, a Class C felony. ECF No. 1
at 13.6 In its order affirming Alotaibi’s conviction, a panel
of the Nevada Supreme Court concluded that “statutory
sexual seduction was not a lesser-included offense of
sexual assault with a minor, and Alotaibi was not entitled
to an instruction on it.” ECF No. 22-12 at 3. Alotaibi
successfully petitioned for en banc reconsideration. ECF
Nos. 22-15. The full Nevada Supreme Court summarized
what transpired at trial regarding the instruction:
In settling jury instructions, Alotaibi requested
an instruction on statutory sexual seduction
as a lesser-included offense of sexual assault,
arguing that evidence indicated the victim
consented to the sexual activity. The district
cour t deter mined that statutor y sexual
seduction was not a lesser-included offense
because it contained an additional element (the
consenting person being under the age of 16) not
required by sexual assault. Noting that there
was evidence of consent to support the lesser
offense, the district court instead offered to
instruct the jury on statutory sexual seduction
6. At the time of the conduct in 2012, Statutory Sexual
Seduction was defined to mean: “(a) [o]rdinary sexual intercourse,
anal intercourse, cunnilingus or fellatio committed by a person
18 years of age or older with a person under the age of 16 years;
or (b) [a]ny other sexual penetration committed by a person 18
years of age or older with a person under the age of 16 years
with the intent of arousing, appealing to, or gratifying the lust
or passions or sexual desires of either of the persons.” Nev. Rev.
Stat. § 200.364(5) (2009).
19a
Appendix C
as a lesser-related offense of sexual assault, but
Alotaibi declined such an instruction.
ECF No. 22-16 at 5–6. After analysis, the Nevada Supreme
Court concluded that “statutory sexual seduction is not
a lesser-included offense of sexual assault, and Alotaibi
was not entitled to an instruction on statutory sexual
seduction. As such, the district court properly refused
to instruct the jury on statutory sexual seduction.” ECF
No. 22-16 at 14.7
Next, A lotaibi arg ued in his counseled state
postconviction petition for writ of habeas corpus that he
was denied effective assistance of counsel when his trial
counsel failed to request a jury instruction on the lesserrelated offense of Statutory Sexual Seduction. ECF No.
23-1. The state court denied the ineffective-assistance
claim, concluding that trial counsel’s failure to review all
jury instructions with Alotaibi fell below the standard
of care, but failing to request a jury instruction on the
lesser-related offense of Statutory Sexual Seduction did
not, as it was a reasonable tactical decision. ECF No. 1-1
at 36–37. The court also found that Strickland’s prejudice
prong was not satisfied for any ground that Alotaibi raised.
ECF No. 1-1 at 36–39.
The court explained there wasn’t a reasonable
probability of a different trial outcome because the
7. The Court notes that there is no federal constitutional right
to jury instructions on lesser-related offenses in noncapital cases.
See Hopkins v. Reeves 524 U.S. 88, 96–98 (1998); United States v.
Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009).
20a
Appendix C
jury was not presented with the binary option of either
convicting Alotaibi of a severe offense for the penetrative
acts or acquitting him. ECF No. 1-1 at 36–39. Rather, the
jury had the option of finding Alotaibi guilty on Counts 4
and 6 for Lewdness with a Child Under the Age of 14 for
those acts if it credited his consent defense. ECF No. 1-1
at 36–37. But the jury rejected the consent defense for
the penetrative acts when it convicted Alotaibi of Sexual
Assault with a Minor Under the Age of 14 and found him
not guilty of Lewdness with a Child Under the Age of 14.
ECF No. 1-1 at 36–37.
The Nevada Court of Appeals affirmed the denial
of habeas relief, explaining that Alotaibi had failed to
satisfy Strickland’s prejudice prong because he provided
no evidence at the evidentiary hearing that he would have
agreed to instruct the jury on the uncharged Statutory
Sexual Seduction offense:
Alotaibi argues the district court erred by
denying his claim of ineffective assistance
of counsel raised in his November 28, 2018,
postconviction petition for a writ of habeas
corpus and supplement. To demonstrate
ineffective assistance of trial counsel, a
petitioner must show counsel’s performance
was deficient in that it fell below an objective
standard of reasonableness and prejudice
resulted in that there was a reasonable
probability of a different outcome absent
counsel’s errors. Strickland v. Washington,
466 U.S. 668, 687–88 (1984); Warden v. Lyons,
21a
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100 Nev. 430, 432 – 33, 683 P.2d 504, 505
(1984) (adopting the test in Strickland). Both
components of the inquiry must be shown,
Strickland, 466 U.S. at 687, and the petitioner
must demonstrate the underlying facts by a
preponderance of the evidence, Means v. State,
120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
Alotaibi argued his trial counsel was ineffective
for failing to discuss with him whether they
should have requested a jury instruction for
a lesser-related offense. At the evidentiary
hearing conducted in the matter, Alotaibi
did not present evidence regarding whether
he would have agreed to request such an
instruction. Thus, Alotaibi did not demonstrate
by a preponderance of the evidence that
he would have agreed to request such an
instruction. Therefore, he did not demonstrate
a reasonable probability of a different outcome
at trial but for counsel’s failure to discuss this
issue with him.
ECF No. 1-1 at 41–42. The Nevada Court of Appeals
denied Alotaibi’s petition for rehearing. ECF No. 1-1 at 64.
And the Nevada Supreme Court denied Alotaibi’s petition
for review. ECF No. 1-1 at 87.
Prejudice is the only prong of Strickland that the
Nevada Court of Appeals addressed. However, this Court
begins its analysis of Alotaibi’s claim with the deficientperformance prong.
22a
Appendix C
A.
Deficient Performance
Because the Nevada Court of Appeals did not reach
the issue of whether trial counsel’s performance was
deficient, AEDPA does not apply and this Court reviews
it de novo. See Rompilla v. Beard, 545 U.S. 374, 390
(2005). “[D]eficient performance is performance that
falls ‘below an objective standard of reasonableness’
and is outside of ‘the range of competence demanded of
attorneys in criminal cases.’” Smith v. Baker, 983 F.3d
383, 396 (9th Cir. 2020) (quoting Strickland, 466 U.S. at
687–88). “The objective measure of counsel’s performance
is determined by looking at the ‘reasonableness under
prevailing professional norms.’” Id. (quoting Strickland,
466 U.S. at 688). “Professional norms are measured at
the time of counsel’s actions rather than by reference
to modern norms.” Id. (citing Cullen, 563 U.S. at 196).
“This assessment is made ‘from counsel’s perspective
at the time,’ so as ‘to eliminate the distorting effects of
hindsight.” Id. (quoting Strickland, 466 U.S. at 689).
The Supreme Court has recognized that “[d]efense
counsel undoubtedly has a duty to discuss potential
strategies with the defendant.” Florida v. Nixon, 543
U.S. 175, 178 (2004). This duty entails “consult[ing] with
the client regarding ‘important decisions,’ including
questions of overarching defense strategy.” Id. at 187.
But it “does not require counsel to obtain the defendant’s
consent to every tactical decision.” Id. (cleaned up). Rather,
a defendant “has the ultimate authority to determine
whether to plead guilty, waive a jury, testify in his or her
own behalf, or take an appeal.” Id. (cleaned up).
23a
Appendix C
Habeas courts “‘defer to a lawyer’s strategic trial
choices, but those choices must have been made after
counsel conducted reasonable investigations or made a
reasonable decision that made particular investigations
unnecessary.’” Smith, 983 F.3d at 396–97 (cleaned up)
(quoting Summerlin v. Schriro, 427 F.3d 623, 630 (9th
Cir. 2005)). Counsel’s “tactical decision may constitute
constitutionally adequate representation even if, in
hindsight, a different defense might have fared better.”
Bemore v. Chappell, 788 F.3d 1151, 1163 (9th Cir. 2015).
Habeas courts “must indulge a strong presumption
that counsel’s conduct fell within the wide range of
reasonable professional assistance and presume that
under the circumstances, the challenged action might be
considered sound trial strategy.” Carter v. Davis, 946 F.3d
489, 516 (9th Cir. 2019) (cleaned up) (quoting Strickland,
466 U.S. at 689). “Strickland does not guarantee perfect
representation, only a ‘reasonably competent attorney.’”
Harrington, 562 U.S. at 110 (quoting Strickland, 466 U.S.
at 687). “There is a ‘strong presumption’ that counsel’s
attention to certain issues to the exclusion of others
reflects trial tactics rather than ‘sheer neglect.’” Id. at 109
(quoting Yarborough, 540 U.S. at 8). “A trial attorney’s
failure to request a jury instruction receives no deference,
however, when it is based on “a misunderstanding of the
law” rather than “a strategic decision to forgo one defense
in favor of another.’” Crace v. Herzog, 798 F.3d 840, 852
(9th Cir. 2015) (cleaned up) (quoting United States v. Span,
75 F.3d 1383, 1390 (9th Cir. 1996)).
Alotaibi argues that trial counsel’s failure to advise
him about and request a jury instruction on the lesser-
24a
Appendix C
related offense of Statutory Sexual Seduction is based on
a misunderstanding of the law. Trial counsel testified at
the postconviction evidentiary hearing that he mistakenly
believed the penalty for that offense was one to ten years
not the actual one to five years. ECF No. 1-6 at 173.
However, trial counsel assumed that the court would
sentence Alotaibi to only four years on each count of that
offense, for a total of 8 years. ECF No. 1-6 at 175. Alotaibi
had already rejected a plea offer of ten years, and trial
counsel didn’t see much difference between 8 and 10
years, so he didn’t consult with Alotaibi about seeking an
instruction. ECF No. 1-6 at 175.
However, having reviewed the full record, the Court
finds that trial counsel’s failure to request an instruction
on Statutory Sexual Seduction was a strategic decision
to forgo one defense in favor of others, not based on
a misunderstanding about the law, and therefore
demands deference. Trial counsel testified during the
postconviction evidentiary hearing about the strategic
reasons why he didn’t ask for the instruction. He really
believed in Alotaibi’s innocence, and there was more than
enough evidence of A.J.’s consent for Alotaibi to prevail
on the Sexual Assault charges. ECF No. 1-6 at 175. He
also understood that neither consent nor intoxication were
defenses to Statutory Sexual Seduction. ECF No. 1-6 at
165–66.
Importantly, trial counsel understood that “the
issue with consent is different than” other issues and
an “inconsistent argument[,]” so the defense needed “to
stick with one theme and one strategy even though . . . the
25a
Appendix C
outcome could have been . . . much harsher. ECF No. 1-6
at 175–76. And he recognized arguing that the penetrative
acts were consensual and obtaining a Statutory Sexual
Seduction instruction was tantamount to conceding that
Alotaibi was guilty of Statutory Sexual Seduction. ECF
No. 1-6 at 211. Thus, during the trial but before settling
jury instructions, trial counsel and Alotaibi “went around
and around . . . about the statutory sexual seduction jury
instruction as to what [the trial court] would do and, you
know, how [the defense] would go about arguing it in
closing argument.” ECF No. 1-5 at 21.
Trial counsel tried to get the State to offer a plea
for Statutory Sexual Seduction early in the case, but it
refused to do so. ECF No. 1-6 at 172. So, trial counsel
believed that Alotaibi had “nothing to lose” going to trial
seeking a complete acquittal on defenses that Alotaibi
was intoxicated and A.J. had consented to the penetrative
acts. ECF No. 1-6 at 172–73, 195. After A.J. testified for
the first time at trial that he had audibly withdrawn his
consent, trial counsel encouraged Alotaibi to testify and
thus provide the jury evidence that A.J. had not withdrawn
his consent. ECF No. 1-6 at 197–98. But Alotaibi wasn’t
willing to testify. ECF No. 1-6 at 176. Trial counsel
believed that Alotaibi wasn’t “willing to listen and reason
with [him] on various things as to what [they] wanted.
[Alotaibi’s] goal was to go home as soon as possible. And
[Alotaibi] believed that he was going to go home.” ECF
No. 1-6 at 176.
After the defense rested its case, trial counsel
concluded that an instruction on Statutory Sexual
26a
Appendix C
Seduction was not necessary if he could argue in closing
that consent is a defense to the sexual assault charges
and “intoxication [is a defense] for lewdness and all the
other charges . . . .” ECF No. 1-5 at 194–95. Counsel for
the parties confirmed that they had provided stipulated
jury instructions on consent and intoxication for the trial
court to review. ECF No. 1-5 at 195–96. Before closing
arguments, trial counsel moved to dismiss Counts 4 and
6 for Lewdness with a Child Under the Age of 14, arguing
that they had been negated by A.J.’s testimony that the
penetrative acts did not have associated touching or
fondling. ECF No. 1-6 at 4–5.
But the trial court denied the motion, finding that
the State was permitted to plead Lewdness with a Child
Under the Age of 14 in the alternative to Sexual Assault
with a Minor Under the Age of 14 for the penetrative acts.
ECF No. 1-6 at 5–6. Trial counsel then sought clarification
that the State would not object to defense arguing in
closing that “consent is a defense to sexual assault” and
“intoxication is a defense to lewdness with a minor . . . .”
ECF No. 1-6 at 6. The State agreed there was no objection,
and the State and trial court confirmed that if the jury
believed that A.J. consented to the acts and Alotaibi was
intoxicated, then Alotaibi “could potentially end up with
a not guilty.” ECF No. 1-6 at 6–7.
Alotaibi’s characterization that this was an all-ornothing strategy for the penetrative acts is unpersuasive.
See ECF No. 1 at 23. The record shows that for the
penetrative acts, the jury had the option of (1) convicting
Alotaibi of Sexual Assault with a Minor Under the Age
27a
Appendix C
of 14, (2) convicting Alotaibi of Lewdness with a Child
Under the Age of 14, or (3) exonerating Alotaibi. See
ECF No. 1-1 at 37. The record demonstrates that the
defense never intended to present the offense of Statutory
Sexual Seduction to the jury. Rather, the defense sought
a complete acquittal using consent and intoxication as
defenses to all the charged offenses.
The Court finds this was a sound trial strategy given
the circumstances. Cf. Crace, 798 F.3d at 852 (recognizing
that even an “‘all-or-nothing’ strategy, forcing the jury
to choose between convicting on a severe offense and
acquitting the defendant altogether” can be “reasonable”
“[i]n certain circumstances”). The jury was not placed
in an all-or-nothing position on the penetrative acts. It
could have convicted Alotaibi of the Lewdness charges
for those acts if it credited his consent defense. Alotaibi
could have been exonerated if the jury credited his
consent and intoxication defenses. But instructing the jury
about Statutory Sexual Seduction very well would have
foreclosed the possibility of exoneration because neither
consent nor intoxication were defenses to that offense.
And the jury had evidence supporting both of Alotaibi’s
defenses.
A witness testified that Alotaibi had been drinking
and smoking marijuana before the offenses. ECF No.
1-4 at 34–38, 61–63, 65–68. The jury heard testimony
that Alotaibi could have believed that A.J. consented to
the conduct. ECF No. 1-2 at 48–54. A.J. testified that he
verbally withdrew his consent. ECF No. 1-2 at 26–27.
But A.J. also testified that he fabricated details when
28a
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reporting the event to detectives, thus raising issues about
his credibility. ECF No. 1-2 at 46–47.
Alotaibi has failed to demonstrate that trial counsel’s
performance was objectively unreasonable. Although
this finding is fatal to Alotaibi’s claim for federal habeas
relief, the Court will also consider his arguments about
the prejudice-prong of the Strickland analysis.
B. Prejudice
The Nevada Court of Appeals determined that
Alotaibi did not demonstrate a reasonable probability of
a different outcome at trial because he did not present
evidence that he would have agreed to instruct the jury on
the lesser-related offense of Statutory Sexual Seduction.
Alotaibi argues that AEDPA does not bar habeas relief
because the Nevada Court of Appeals’ decision was based
on an unreasonable determination of the facts in the
state record. ECF No. 1 at 21–23. “[W]hether petitioner’s
conviction ‘was based on an unreasonable determination
of the facts in light of the evidence presented in the
State court proceeding.’ . . . is a daunting standard—one
that will be satisfied in relatively few cases.” Taylor v.
Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), overruled
on other grounds by Pinholster, 563 U.S. at 184–86 &
nn. 7, 10. But the standard is not impossible to meet. Id.
(citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
“Intrinsic challenges to state-court findings [under]
the ‘unreasonable determination’ standard come in
several flavors, each presenting its own peculiar set of
considerations.” Id.
29a
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Alotaibi argues that the Nevada court ignored or
overlooked that: (1) the jury heard evidence that Alotaibi
confessed to police that he penetrated A.J.’s mouth and
anus with his penis; (2) the jury was presented with an
all-or-nothing option for the penetrative acts even if it
credited his consent defense; (3) the jury heard evidence
that could have allowed it to discredit A.J.’s testimony
about force; (4) the jury heard evidence that could have
allowed it to credit Alotaibi’s consent defense; and (5) the
disparity between the sentence for Sexual Assault with
a Minor Under the Age of 14 (life with the possibility for
parole after 35 years) and Statutory Sexual Seduction
(one to five years) is enormous. ECF No. 1 at 23–24. When
considering this kind of claim, courts must be “mindful
that the state courts are not required to address every
jot and tittle of proof suggested to them, nor need they
‘make detailed findings addressing all the evidence
before’” them. Taylor, 366 F.3d at 1001 (quoting MillerEl, 537 U.S. at 347). “To fatally undermine the state
fact-finding process, and render the resulting finding
unreasonable, the overlooked or ignored evidence must be
highly probative and central to petitioner’s claim.” Id. “In
other words, the evidence in question must be sufficient to
support petitioner’s claim when considered in the context
of the full record bearing on the issue presented in the
habeas petition.” Id.
Alotaibi’s second item of objective evidence is factually
wrong. As discussed above, the jury was not presented
with an all or nothing option for the penetrative acts.
Rather, if the jury credited Alotaibi’s consent defense it
could have convicted him of Counts 4 and 6 for Lewdness
with a Child Under the Age of 14.
30a
Appendix C
As for Alotaibi’s remaining evidence, trial counsel
declared that “during [his and Alotaibi’s] discussions
regarding jury instructions, [Alotaibi] expressed an
inability to understand the nature, significance in context,
and potential implications of a waiver of the lesser-related
Statutory Sexual Seduction instruction offered by the
trial court.” ECF No. 23-1 at 65. “[W]ith respect to the
jury instructions,” trial counsel testified that Alotaibi
said, “you are the lawyer, you make the decisions for me
and that’s what [counsel] did.” ECF No. 1-6 at 177. Trial
counsel also testified that Alotaibi’s “goal was to go home
as soon as possible. And he believed that he was going to
go home.” ECF No. 1-6 at 176.
Trial counsel testified that a complete acquittal was
possible without the instruction on Statutory Sexual
Seduction. ECF No. 1-6 at 202. Neither consent nor
intoxication are defenses to that offense, so Alotaibi
agreeing to instruct the jury on Statutory Sexual
Seduction was therefore tantamount to him agreeing
to be convicted of that offense. ECF No. 1-6 at 201–02.
Trial counsel testified that the evidence for Alotaibi
was “strong” enough to raise a reasonable doubt on the
charges. ECF No. 1-6 at 203. And counsel believed “that
there was more than enough evidence in the record for
[Alotaibi] to have won the consent issue with respect to
sexual assault.” ECF No. 1-6 at 175.
Considering the whole record, including the absence
of any affirmative act or statement from Alotaibi or trial
counsel that Alotaibi would have agreed to the Statutory
Sexual Seduction jury instruction, the Court concludes
31a
Appendix C
that the objective evidence Alotaibi raises is not highly
probative of his claim that he would have agreed to a
jury instruction on that offense—and thus agreed to be
convicted of it—instead of seeking a complete acquittal
based on his consent and intoxication defenses. The
Nevada Court of Appeals determined that Alotaibi could
not show a reasonable probability that the outcome of
trial would have been different because he did not provide
subjective evidence that he would have agreed to instruct
the jury on a lesser-related offense. This decision was
not based on an unreasonable determination of the facts
considering the entire state court record. Thus, AEDPA’s
requirements have not been met as to the prejudice-prong
of the Strickland analysis. And Alotaibi is denied habeas
relief on his claim.
The ultimate outcome would be the same even if the
Court considered prejudice under a de novo standard of
review. The parties do not cite authority that addresses
Strickland prejudice in the context of trial counsel’s failure
to advise about and request a lesser-related instruction.
Instead, Alotaibi cites cases from other circuits analyzing
Strickland prejudice in the guilty-plea context. ECF No. 1
at 18. Supreme Court precedent on the subject requires a
petitioner to “show [that] the outcome of the plea process
would have been different with competent advice.” Lafler,
566 U.S. at 164.
Alotaibi’s claim is more akin to when counsel’s
ineffective advice leads a defendant to deny a plea offer,
rather than improvidently accept one. So, to satisfy
Strickland’s prejudice prong under a de novo review,
32a
Appendix C
Alotaibi must show a reasonable probability that he would
have agreed to request a jury instruction on the Statutory
Sexual Seduction offense, the trial court would have
allowed the instruction, and the conviction or sentence
would have been less severe than what was imposed. See
id. Alotaibi cannot demonstrate that his sentence would
have been less severe than what was imposed had the jury
been instructed about the Statutory Sexual Seduction
offense. The State correctly summarized the flaw with
Alotaibi’s argument about this issue in the postconviction
evidentiary hearing:
The jury rejected the defense of consent. They
rejected the defense. [Alotaibi] needed consent
to get to statutory sexual seduction. [Alotaibi]
needed consent to walk on sexual assault.
The jury rejected consent. Merely giving an
instruction on a lesser related [offense] that
still requires consent doesn’t change the fact
finding. The jury rejected consent, therefore
[Alotaibi suffered] no prejudice and [trial
counsel’s] strategy was objectively reasonable.
ECF No. 1-6 at 228.
Alotaibi’s incorrect insistence that the jury was given
an all-or-nothing option on the penetrative acts is not
enough to undermine confidence in the outcome of the
trial. In sum, the jury was given the option to convict
Alotaibi on the lesser-related Lewdness charges for the
penetrative acts if it credited his consent defense. But
the jury rejected Alotaibi’s consent defense and convicted
33a
Appendix C
him on the Sexual Assault charges. The jury also rejected
Alotaibi’s intoxication defense and found him guilty on
Counts 7 and 8 for Lewdness with a Child Under the
Age of 14 for other acts. ECF No. 18-19 at 4. Alotaibi was
sentenced to Life with a Parole Eligibility after 10 years
for those offenses, which run concurrently. ECF No.
20-20 at 3. Given these circumstances, it is not plausible
that the jury would have convicted Alotaibi of Statutory
Sexual Seduction for the penetrative acts if it had been
given that option.
IV. CERTIFICATE OF APPEALABILITY
The standard for the issuance of a certificate of
appealability requires a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c). “Where a
district court has rejected the constitutional claims on
the merits, the showing required to satisfy § 2253(c)
is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see
also James v. Giles, 221 F.3d 1074, 1077–79 (9th Cir. 2000).
Applying this standard, the Court finds that a certificate
of appealability is not warranted in this case. The Court
therefore denies Alotaibi a certificate of appealability.
34a
Appendix C
V. CONCLUSION
IT IS THEREFORE ORDERED that Alotaibi’s
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 1) is DENIED on the merits. 8
IT IS FURTHER ORDERED that a certificate of
appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of
the Court will SUBSTITUTE Nethaniah Breitenbach
for Respondent State of Nevada, enter final judgment
accordingly, and close this case.
DATED: April 8, 2024
/s/ Gloria M. Navarro
Gloria M. Navarro
United States District Judge
8. At the conclusion of his petition, Alotaibi generally asks
the Court to “[c]onduct an evidentiary hearing at which proof
may be offered concerning the allegations in this petition and
any defenses that may be raised by respondents.” ECF No. 1 at
24–25. The Court denies Alotaibi’s request because he has not
demonstrated that he is entitled to an evidentiary hearing. See
Williams v. Taylor, 529 U.S. 420 (2000) (explaining standard for
federal habeas court to consider new evidence); Shinn v. Ramirez,
596 U.S. 366 (2022) (same).
35a
Appendix
D
APPENDIX D — ORDER
DENYING
PETITION
FOR REVIEW OF THE SUPREME COURT OF THE
STATE OF NEVADA, FILED FEBRUARY 19, 2021
IN THE SUPREME COURT OF THE
STATE OF NEVADA
No. 79752
MAZEN ALOTAIBI,
Appellant,
vs.
RENEE BAKER, WARDEN LOVELOCK
CORRECTIONAL CENTER; AND JAMES
DZURENDA, DIRECTOR OF THE NEVADA
DEPARTMENT OF CORRECTIONS,
Respondents.
ORDER DENYING PETITION FOR REVIEW
Review denied. NRAP 40B.
It is so ORDERED.
/s/ Hardesty
Hardesty
, C.J.
36a
Appendix D
/s/ Parraguirre
Parraguirre
, J.
/s/ Stiglich
Stiglich
, J.
/s/ Cadish
Cadish
, J.
/s/ Silver
Silver
, J.
/s/ Pickering
Pickering
, J.
/s/ Herndon
Herndon
, J.
37a
Appendix
E
APPENDIX E — ORDER
DENYING
REHEARING
OF THE COURT OF APPEALS OF THE STATE OF
NEVADA, FILED DECEMBER 18, 2020
IN THE COURT OF APPEALS
OF THE STATE OF NEVADA
No. 79752-COA
MAZEN ALOTAIBI,
Appellant,
vs.
RENEE BAKER, WARDEN LOVELOCK
CORRECTIONAL CENTER; AND JAMES
DZURENDA, DIRECTOR OF THE NEVADA
DEPARTMENT OF CORRECTIONS,
Respondents.
ORDER DENYING REHEARING
Rehearing denied. NRAP 40(c).
It is so ORDERED.
/s/ Gibbons
Gibbons
, C.J.
/s/ Tao
Tao
, J.
/s/ Bulla
Bulla
, J.
38a
Appendix
APPENDIX F — ORDER
OFFAFFIRMANCE OF
THE COURT OF APPEALS OF THE STATE OF
NEVADA, FILED OCTOBER 16, 2020
IN THE COURT OF APPEALS
OF THE STATE OF NEVADA
No. 79752-COA
MAZEN ALOTAIBI,
Appellant,
vs.
RENEE BAKER, WARDEN LOVELOCK
CORRECTIONAL CENTER; AND JAMES
DZURENDA, DIRECTOR OF THE NEVADA
DEPARTMENT OF CORRECTIONS,
Respondents.
Filed October 16, 2020
ORDER OF AFFIRMANCE
Mazen Alotaibi appeals from an order of the district
court denying a postconviction petition for a writ of habeas
corpus. Eighth Judicial District Court, Clark County;
Stefany Miley, Judge.
Alotaibi argues the district court erred by denying
his claim of ineffective assistance of counsel raised in his
39a
Appendix F
November 28, 2018, postconviction petition for a writ of
habeas corpus and supplement. To demonstrate ineffective
assistance of trial counsel, a petitioner must show counsel’s
performance was deficient in that it fell below an objective
standard of reasonableness and prejudice resulted in that
there was a reasonable probability of a different outcome
absent counsel’s errors. Strickland v. Washington, 466
U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430,
432-33, 683 P.2d 504, 505 (1984) (adopting the test in
Strickland). Both components of the inquiry must be
shown, Strickland, 466 U.S. at 687, and the petitioner must
demonstrate the underlying facts by a preponderance of
the evidence, Means v. State, 120 Nev. 1001, 1012, 103
P.3d 25, 33 (2004).
Alotaibi argued his trial counsel was ineffective for
failing to discuss with him whether they should have
requested a jury instruction for a lesser-related offense.
At the evidentiary hearing conducted in this matter,
Alotaibi did not present evidence regarding whether
he would have agreed to request such an instruction.
Thus, Alotaibi did not demonstrate by a preponderance
of the evidence that he would have agreed to request
such an instruction. Therefore, he did not demonstrate
a reasonable probability of a different outcome at trial
but for counsel’s failure to discuss this issue with him.
Accordingly, we conclude the district court did not err by
denying this claim, and we
40a
Appendix F
ORDER t he judg ment of t he d i st r ic t cou r t
AFFIRMED.
/s/ Gibbons
Gibbons
, C.J.
/s/ Tao
Tao
, J.
/s/ Bulla
Bulla
, J.
41a
AppendixAND
G ORDER OF THE
APPENDIX G — DECISION
DISTRICT COURT, CLARK COUNTY, NEVADA,
DATED SEPTEMBER 5, 2019
DISTRICT COURT
CLARK COUNTY, NEVADA
CASE NO.: A-18-785145-W
DEPARTMENT XXIII
MAZEN ALOTAIBI,
Petitioner,
v.
RENEE BAKER, WARDEN; LOVELOCK
CORRECTIONAL CENTER; AND JAMES
DZURENDA, DIRECTOR OF THE NEVADA
DEPARTMENT OF CORRECTON,
Respondent.
Dated September 5, 2019
DECISION & ORDER
I.
INTRODUCTION
This matter was last before the Court on June 6,
2019 for an evidentiary hearing pursuant to Petitioner’s
Supplemental Post-conviction Petition for Writ of Habeas
Corpus and the State’s Response thereto. Petitioner was
42a
Appendix G
represented by Dominic P. Gentile, Esq. The State was
represented by Deputized Law Clerk Joshua L. Prince,
Esq. and Chief Deputy District Attorney Charles W.
Thoman, Esq.
Petitioner’s original petition set forth a claim of
ineffective assistance of counsel. These claims include
the following allegations: (1) Petitioner’s trial attorney
unilaterally rejected the trial court’s invitation to request
a jury instruction on a lesser-related, uncharged offense,
(2) Petitioner’s trial attorney commenced discussion of
jury instructions without the presence of the Petitioner
on the condition that he would review all discussions
regarding jury instructions with Petitioner Alotaibi, but
the trial attorney failed to conduct a complete discussion,
(3) Petitioner’s trial attorney failed to obtain petitioner’s
consent to reject the trial court’s offer with respect to
counts 3 and 5 of Sexual Assault, and (4) the rejection of
the lesser-related offense resulted in prejudice against
the petitioner.
II. TESTIMONY
At the June 6, 2019 evidentiary hearing, Petitioner’s
attorney called the original trial attorney, Don Chairez,
to the stand. The pertinent testimony was as follows:
A.
Don Chairez (“Chairez”)
At the time of the evidentiary hearing, Chairez
testified that the Petitioner was not present when
Counsel and the Court discussed jury instructions.
43a
Appendix G
However, he was directed by the Court to personally
go through each of the jury instructions with the
Petitioner during the lunch break. During the hour
and fifteen minute lunch break, Chairez testified
that he spent most of that time attempting to
persuade Petitioner to testify. Chairez testified that
the Petitioner had decided against testifying after
watching the examination of other witnesses.
Chairez testified that there was no interpreter
present during the hour and fifteen minute discuss.
Chairez testified that he briefly went over the
elements of sexual assault and lewdness, explaining
that these charges would come down to whether
Petitioner could show that the victim consented.
Chairez testified that during the hour and
fifteen minute lunch break, he did not spend any
time discussing the lesser-related sexual seduction
instruction, nor did he discuss or explain the
sentencing differences between Statutory Sexual
Seduction and the other charges. He did however
explain the sentencing differences between Sexual
Assault and Lewdness. Chairez said he never
received consent from his client to reject the
instruction for Statutory Sexual Seduction. Chairez
testified that in hindsight he believes the judge was
trying to telegraph that he should ask for the related
instruction and that he should not have made the
decision to reject the instruction without obtaining
informed consent from Petitioner.
44a
Appendix G
In fact, after the trial, jurors asked him why
there was not an instruction for statutory rape.
COURT FINDS, Mr. Chairez’s testimony
credible.
III. PROCEDURAL BACKGROUND
On January 28, 2015, Alotaibi was adjudged guilty
and sentenced to the Nevada Department of Corrections
as follows: Count 1: a minimum term of 12 months and
a maximum term of 48 months; Count 2: a definite term
of 15 years with eligibility for parole beginning when a
minimum of five years have been served, Count 2 to run
concurrent with Count 1; Count 3: Life imprisonment with
eligibility for parole beginning when a minimum of 35
years have been served, Count 3 to run concurrent with
Count 2; Count 5: Life imprisonment with the eligibility for
parole beginning when a minimum of 35 years have been
served, Count 5 to run concurrent with count 3; Count 7:
Life imprisonment with eligibility for parole beginning
when a minimum of 10 years have been served, Count 7 to
run concurrent with Count 5: Count 8: Life imprisonment
with eligibility for parole beginning when a minimum of
10 years have been served, Count 8 to run concurrent
with Count 7; and Count 9: credit for time served. Alotaibi
received 758 days’ credit for time served. Alotaibi was
also subject to a special sentence of lifetime supervision,
which would commence upon his release from any term
of probation, parole, or imprisonment. Further, pursuant
to NRS 179D.460, Alotaibi would have to register as a sex
offender within 48 hours of sentencing or release from
custody.
45a
Appendix G
Alotaibi’s Judgement of Conviction was filed on
February 5, 2015. Alotaibi filed his timely Notice of Appeal
on that same date and filed his Opening Brief (“AOB”)
on October 26, 2015. The State responded. The Nevada
Supreme Court affirmed his conviction on February 28,
2017. The Petitioner was successful in having the Supreme
Court of Nevada consider his case with an opinion being
filed on November 9, 2017. The Supreme Court of Nevada
affirmed the Judgment of Conviction.
Petitioner filed a Petition for Certiorari on February 7,
2018. The United States Supreme Court denied certiorari
on April 16, 2018.
On November 28, 2018, Petitioner filed the instant
Petition for Writ of Habeas Corpus. The State filed a
Return on December 31, 2018. Petitioner filed a Reply on
January 14, 2019.
IV. DISCUSSION
A criminal defendant has a Sixth Amendment right to
effective representation at trial. McMann v. Richardson,
397 U.S. 759, 771 n. 14 (1970). The United States Supreme
Court established the legal principles that govern claims
of ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668 (1984). In order for Defendant to
be successful in his ineffective assistance of counsel claim,
Defendant must prove that his (1) counsel’s performance
was deficient, and (2) that the deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. at 687, 694
(1984); see also State v. Love, 865 P.2d 322, 323 (1996)
(applying the two-prong Strickland test in Nevada).
46a
Appendix G
To meet the deficient performance prong, a petitioner
must demonstrate that counsel’s representation “fell below
an objective standard of reasonableness.” Strickland, 466
U.S. at 688.
In his habeas petition, Petitioner argues that his
counsel was ineffective for four primary reasons. First,
Petitioner claims his trial counsel was ineffective when
he unilaterally rejected the trial court’s offer Statutory
Sexual Seduction for Counts 3 and 5. Second, Petitioner
claims his trial attorney was ineffective when he failed to
convey discussions regarding jury instructions with the
Petitioner. Thus, Petitioner did not understand the legal
distinctions involved or the sentencing consequences of
the decision to accept or reject the court’s offer. Third,
Petitioner claims his trial attorney was ineffective when
he did not obtain Petitioner’s express consent to reject
the trial court’s invitation of the lesser-related offense
instruction. Fourth, Petitioner claims that Chairez’s
representation was ineffective and unreasonable since
he only provided the jury two options, a conviction or
a complete exoneration, and but for this ineffective
assistance of counsel, there was a reasonable probability
that the results would have been different.
In response, the State argues that the Petitioner’s
counsel was not ineffective for making unilateral strategic
decisions. Defense counsel specifically declined to ask
for the Statutory Sexual Seduction instruction because
he was basing his theory of the defense on the victim’s
consent for Counts 3 and 5, and the Petitioner’s voluntary
intoxication for Counts 4, 6, 7, and 8. The possibility of
a complete acquittal of the crimes underling Counts 3,
47a
Appendix G
4, 5, and 6 would not have presented itself had counsel
requested the Statutory Sexual Seduction Instruction.
Next, the State argues an attorney does not need to
obtain consent to every tactical decision; however, certain
decisions, such as the exercise or waiver or rights, must
be discussed and entered into voluntarily. The Sixth
Amendment requires that the exercise or waiver of certain
rights are of such importance that they cannot be made for
the defendant by a surrogate. Here, a jury instruction for
a lesser-related offense, unlike one for a lesser-included
offense, is not mandatory, nor is it a waiver of a right.
Instead, it is a “tactical decision” for which defense counsel
can argue in his discretion. Thus, consent by the client is
not necessary.
Finally, the State claims that even if there was a
deficient performance by Defense Counsel, the outcome of
the trial was not prejudiced as there was not a reasonable
probability that the result of the proceedings would have
been different. The jury was not forced to choose between
a conviction and a complete exoneration regarding Counts
3 and 5, as the State gave the jury an additional option by
charging Petitioner with Counts 4 and 6, Lewdness with a
Child Under the Age of 14, as an alternative to the Sexual
Assault charge. Count 4’s Lewdness charge coincided with
Count 3’s Sexual Assault charge for the anal touching
and penetration, just as Count 6’s Lewdness charge
coincided with Count 5’s Sexual Assault charge for the
oral touching and penetration. Based on the verdict, the
jury considered and rejected that the sexual penetration
that occurred in Counts 3 and 5 was consensual. Thus,
48a
Appendix G
the outcome of the trial was not prejudiced because there
was not a reasonable probability that the outcome would
have been different. Finally, the State argues that the
evidence presented at trial was in fact sufficient to sustain
a conviction and noted the Supreme Court affirmed said
conviction.
V. FINDINGS OF FACT AND CONCLUSIONS OF
LAW
The Si x th A mendment to the Unit ed Stat es
Constitution provides that, “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defense.” The United States Supreme
Court has long recognized that “the right to counsel is the
right to the effective assistance of counsel.” Strickland
v. Washington, 466 U.S. 668, 686 (1984); see also State v.
Love, 109 Nev. 1136, 1138 (1993).
To prevail on a claim of ineffective assistance of
trial counsel, a defendant must prove he was denied
“reasonably effective assistance” of counsel by satisfying
the two-prong test of Strickland, 466 U.S. at 686-87.
See also Love, 109 Nev. at 1138, 865 P.2d at 323. Under
the Strickland test, a defendant must show first that his
counsel’s representation fell below an objective standard
of reasonableness, and second, that but for counsel’s
errors, there is a reasonable probability that the result
of the proceedings would have been different. Strickland,
466 U.S. at 687-88, 694; Warden, Nevada State Prison v.
Lyons, 100 Nev. 430, 432 (1984) (adopting the Strickland
two-part test). “[T]here is no reason for a court deciding
49a
Appendix G
an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on
one.” Strickland, 466 U.S. at 697.
The court begins with the presumption of effectiveness
and then must determine whether the defendant has
demonstrated by a preponderance of the evidence that
counsel was ineffective. Means v. State, 120 Nev. 1001,
1011, 103 P.3d 25, 32 (2004). “Effective counsel does
not mean errorless counsel, but rather counsel whose
assistance is ‘[w]ithin the range of competence demanded
of attorneys in criminal cases.’” Jackson v, Warden, 91
Nev. 430, 432 (1975). Counsel cannot be ineffective for
failing to make futile objections or arguments. See Ennis
v. State, 122 Nev. 694, 706 (2006). Trial counsel has the
“immediate and ultimate responsibility of deciding if and
when to object, which witnesses, if any, to call, and what
defenses to develop.” Rhyne v. State, 118 Nev. 1, 8 (2002).
Based on the above law, the role of a court in
considering allegations of ineffective assistance of counsel
is “not to pass upon the merits of the action not taken
but to determine whether, under the particular facts and
circumstances of the case, trial counsel failed to render
reasonably effective assistance.” Donovan v. State, 94
Nev. 671, 675 (1978). This analysis does not mean that
the court should “second guess reasoned choices between
trial tactics nor does it mean that defense counsel, to
protect himself against allegations of inadequacy, must
make every conceivable motion no matter how remote
the possibilities are of success.” Id. To be effective, the
50a
Appendix G
constitution “does not require that counsel do what is
impossible or unethical. If there is no bona fide defense to
the charge, counsel cannot create one and may disserve
the interests of his client by attempting a useless charade.”
United States v. Cronic, 466 U.S. 648, 657 n.19 (1984).
“There are countless ways to provide effective
assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client
in the same way.” Strickland, 466 U.S. at 689, 104
S.Ct. at 689. “Strategic choices made by counsel after
thoroughly investigating the plausible options are almost
unchallengeable.” Dawson v. State, 108 Nev. 112, 117 (1992);
see also Ford v. State, 105 Nev. 850, 853 (1989). In essence,
the court must “judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Strickland,
466 U.S. at 690.
Even if a defendant can demonstrate that his counsel’s
representation fell below an objective standard of
reasonableness, he must still demonstrate prejudice and
show a reasonable probability that, but for counsel’s errors,
the result of the trial would have been different. McNelton
v. State, 115 Nev. 396, 403 (1999) (citing Strickland, 466
U.S. at 687). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
(citing Strickland, 466 U.S. at 687-89, 694 2068).
The Nevada Supreme Court has held “that a habeas
corpus petitioner must prove the disputed factual
allegations underlying his ineffective-assistance claim
by a preponderance of the evidence.” Means v. State, 120
Nev. 1001, 1012 (2004). Furthermore, claims of ineffective
51a
Appendix G
assistance of counsel asserted in a petition for postconviction relief must be supported with specific factual
allegations, which if true, would entitle the petitioner to
relief. Hargrove v. State, 100 Nev. 498, 502 (1984).
“Bare” and “naked” allegations are not sufficient,
nor are those belied and repelled by the record. Id. NRS
34.735(6) states in relevant part “[Petitioner] must allege
specific facts supporting the claims in the petition[.] . . .
Failure to allege specific facts rather than just conclusions
may cause your petition to be dismissed.” (emphasis
added). A defendant is not entitled to a particular
“relationship” with his attorney. Morris v. Slappy, 461
U.S. 1, 14 (1983). There is no requirement for any specific
amount of communication as long as counsel is reasonably
effective in his representation. See id.
At the time of Petitioner’s sentencing in 2012, the
sentencing guidelines for the charged counts were as
follows:
• Sexual Assault—a category A felony for which
a court shall sentence a convicted person to life
with parole eligibility after 35 years if the offense
was committed against a child under the age of 14
years and did not result in substantial bodily harm.
NRS 200.366(3)(c).
• Lewdness—a category A felony for which a court
shall sentence a convicted person to
(a) Life with the possibility of parole,
with eligibility for parole beginning when a
minimum of 10 years has been served, and
52a
Appendix G
may be further punished by a fine of not more
than $ 10,000; or
(b) A definite term of 20 years, with
eligibility for parole after a minimum of 2
years has been served, and may further be
punished by a fine of not more than $ 10,000.
NRS 201.230 (2)
• Statutory Sexual Seduction—a category C felony
for which a court shall sentence a convicted person
to imprisonment in the state prison for a minimum
term of not less than 1 year and a maximum term
of not more than 5 years. In addition to any other
penalty, the court may impose a fine of not more
than $ 10,000, unless a greater fine is authorized
or required by statute. NRS 193.130(c).
Strategic and tactical decisions should be made by
defense counsel, after consultation with the client where
feasible and appropriate. ABA Criminal Justice Standards
Section 4-5.2 (d) (emphasis added). An attorney has a duty
to consult with the client regarding important decisions.
Here, trial counsel was instructed to sit with his client
and the interpreter to inform the Petitioner about the jury
instruction discussions, including the possible request for
the Statutory Sexual Seduction instruction. Transcript
Day 7 at 3, 20-21, 31, 34. Trial counsel acknowledged
that he did not meaningfully discuss the lesser-related
Statutory Sexual Seduction instruction issue with
Petitioner.
Pursuant to the two-prong test set forth in Strickland
v. Washington, COURT FINDS, Petitioner’s trial
53a
Appendix G
counsel was ineffective when he failed to review all jury
instruction discussions with the Petitioner as explicitly
direct by the Court. However, COURT FURTHER
FINDS, that failing to review the lesser-related offense
with his client did not result in a reasonable probability
that the result would have been different pursuant to
Strickland, COURT FINDS, the jury was not forced to
choose between a conviction and exoneration on Counts 3
and 5 – Sexual Assault of a Minor under Fourteen Years of
Age, as they had an alternative option of finding Petitioner
guilty of Counts 4 and 6 – Lewdness with a Child under
the Age of 14. Therefore, COURT FINDS, though Defense
Counsel was ineffective, this ineffectiveness did not result
in a reasonable probability that the outcome would have
been different.
Although Attorney Chairez testified that there was
not an interpreter present to discuss jury instructions
with the Petitioner, the record indicates otherwise. Trial
transcripts indicate an interpreter was present just prior
to the lunch break on Day 7 and that Chairez specifically
asked permission to stay in the courtroom during the
lunch hour with his client and the interpreter. Transcript
Day 7 at 33-35. After the lunch recess, the court resumed
proceedings, affirming the presence of the Petitioner and
the interpreter. Transcript Day 7 at 35. Thus, claims that
an interpreter was not present during this time are belied
by the record.
COURT FINDS, Petitioner’s trial counsel was not
ineffective for failing to request the Statutory Sexual
Seduction instruction because it was a legitimate, tactical
decision that could have led to acquittal. Therefore,
COURT FINDS, this decision was not the unreasonable
54a
Appendix G
all-or-nothing strategy as described by the Petitioner
since the State had also charged Lewdness with a Child
under 14 Years of Age as an alternative to the Sexual
Assault charges. Transcript Day 7, at 24. The jury was
not left with a strictly binary decision between complete
acquittal and conviction for the anal and oral penetration
of A.J. Had the jury believed the Petitioner’s defense of
consent, then they had the option to find the anal and oral
penetration of A.J. to be Lewdness with a Child Under
14 Years of Age.
Thus, regarding the anal and oral penetration of
A.J., the jury had the option to (a) convict the Petitioner
of Sexual Assault, (b) convict the Petitioner of Lewdness
with a Child Under 14 Years of Age, or (c) exonerate the
Petitioner. Exoneration would have only occurred if the
jury found that A.J. had consented to the penetration
(negating sexual assault) AND that the Petitioner was
sufficiently intoxicated to nullify the requisite intent
for Lewdness. Introduction of the Statutory Sexual
Seduction instruction closed the door to any possibility of
exoneration, and thus, was not an unreasonable decision
made by trial counsel.
This court does recognize that when a jury is left
to decide between complete acquittal or conviction that
it might be ineffective assistance for counsel to fail to
request a lesser-related offense instruction; however,
that is not the case in this matter. Here, the jury already
had a lesser-related offense instruction of Lewdness. An
additional lesser-related offense instruction of Statutory
Sexual Seduction would not have resulted in a different
outcome because the jury rejected the lesser-related
55a
Appendix G
offense of Lewdness when they convicted the Petitioner
of Sexual Assault.
Finally, COURT FINDS, the decision not to request
the lesser-relate.d charge of Statutory Sexual Seduction
did not prejudice the outcome of the jury.
Regarding the anal and oral penetration of A.J., the
jury had the option to (1) convict Petitioner of a category
A Felony for Sexual Assault, (2) convict Petitioner of a
category A Felony for Lewdness, or (c) exonerate the
Petitioner. Even if an instruction of a category C Felony
for Statutory Sexual Seduction was included, this court
fails to see how said instruction would have changed the
outcome of this trial since the jury chose to l O convict
on the greater charge of Sexual Assault instead of the
lesser-related charge of Lewdness.
To convict the Petitioner of Sexual Assault, the jury
had to consider whether or not A.J. consented to the sexual
penetration. The jury was instructed on the definition
of Sexual Assault (Instruction 8) and told that a good
faith belief of consent was a defense to Sexual Assault
(Instruction 13). Additionally, the jury was instructed that
any lewd or lascivious act, other than acts constituting
the crime of sexual assault, upon or with the body, of a
child under the age of 14 years is Lewdness with a child.
(Instruction 14) and told that consent is not a defense to
Lewdness (Instruction 16).
Therefore, COURT FINDS, if the jury had determined
that A.J. had consented to the penetration, and therefore
56a
Appendix G
not a sexual assault, they could have still convicted
Petitioner of Lewdness, which is still a lascivious act
upon the body of a child under the age of 14 that does
not constitute the crime of sexual assault. However,
COURT FINDS, the jury chose to convict the Petitioner
on the greater charge of Sexual Assault regarding the
anal and oral penetration of A.J. Verdict at 2. COURT
THEREFORE FINDS, adding another instruction for
Statutory Sexual Seduction, which is a lesser charge than
Lewdness, would not have had any effect on the outcome
of this case.
V. ORDER
For the foregoing reasons, COURT ORDERS,
Petitioner’s Supplemental Petition for Writ of Habeas
Corpus, DENIED.
Dated this 5th day of September, 2019.
/s/ Stefany A Miley
HONORABLE STEFANY A MILEY
DISTRICT COURT JUDGE
DEPARTMENT XXIII
57a
Appendix OF
H THE SUPREME
APPENDIX H — OPINION
COURT OF THE STATE OF NEVADA
FILED NOVEMBER 9, 2017
IN THE SUPREME COURT
OF THE STATE OF NEVADA
No. 67380
MAZEN ALOTAIBI,
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
Appeal from a judgment of conviction, pursuant to
a jury verdict, of burglary, first-degree kidnapping, two
counts of sexual assault with a minor under 14 years of
age, two counts of lewdness with a child under 14 years of
age, and coercion. Eighth Judicial District Court, Clark
County; Stefany Miley, Judge.
Affirmed.
Filed November 9, 2017
58a
Appendix H
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
In this appeal, we are asked to determine whether,
under the statutory definitions existing in 2012, the offense
of statutory sexual seduction is a lesser-included offense
of sexual assault when that offense is committed against a
minor under 14 years of age.1 Under the elements test, for
an uncharged offense to be a lesser-included offense of the
charged offense so that the defendant is entitled to a jury
instruction on the lesser offense, all of the elements of the
lesser offense must be included in the greater, charged
offense. In applying the elements test in this case, we must
resolve two issues related to the elements that make up
the charged and uncharged offenses. First, we consider
whether a statutory element that serves only to determine
the appropriate sentence for the offense but has no bearing
as to guilt for the offense is an element of the offense
for purposes of the lesser-included-offense analysis. We
hold that it is not. Second, we consider how to apply the
elements test when a lesser offense may be committed by
1. The statutes defining statutory sexual seduction and sexual
assault were amended in 2015. Under the 2015 amendments, any
sexual penetration of a minor under the age of 14 is sexual assault,
and it is no longer possible for statutory sexual seduction to be
committed against a minor under the age of 14. Therefore, the
analysis of the statutory elements in this opinion pertains only to
the version of the statutes in place at the time the offenses were
committed in 2012. See 2007 Nev. Stat., ch. 528, § 7, at 3255 (sexual
assault, NRS 200.366(1)); 2009 Nev. Stat., ch. 300, § 1.1, at 1296
(statutory sexual seduction, NRS 200.364(5)).
59a
Appendix H
alternative means. We hold that the elements of only one
of the alternative means need be included in the greater,
charged offense to warrant an instruction on the lesser
offense.
Applying these principles to the statutes at issue, we
conclude that statutory sexual seduction, as defined in
NRS 200.364(5)(a) (2009), is not a lesser-included offense
of sexual assault even where the victim is a minor, NRS
200.366(1) (2007), because statutory sexual seduction
contains an element not included in the greater offense.
Thus, the district court did not err in refusing to give a
lesser-included-offense instruction on statutory sexual
seduction. 2
FACTS
On the morning of December 31, 2012, appellant
Mazen Alotaibi arrived at the Circus Circus hotel where
2. The two other arguments raised on appeal do not merit
relief. First, as to the argument that trial counsel was ineffective,
claims of ineffective assistance of counsel generally should be
raised in postconviction proceedings in the district court, and we
therefore decline to consider the argument in the first instance.
See Pellegrini v. State, 117 Nev. 860, 883-84, 34 P.3d 519, 534-35
(2001). Second, as to the claim regarding the district court’s denial
of a motion for a new trial based on newly discovered evidence, we
have considered the arguments on appeal and conclude that the
district court did not abuse its discretion in denying the motion.
See State v. Carroll, 109 Nev. 975, 977, 860 P.2d 179, 180 (1993)
(reviewing a district court’s decision to grant a motion for a new
trial for an abuse of discretion); Callier v. Warden, Nev. Women’s
Corr. Ctr., 111 Nev. 976, 990, 901 P.2d 619, 627-28 (1995) (explaining
the four required components for granting a motion for a new trial
based upon a recantation).
60a
Appendix H
his friends had a room. In the hallway outside the hotel
room, Alotaibi encountered A.D., a 13-year-old boy who
was staying at the hotel with his grandmother. A.D.
asked Alotaibi for marijuana, and they went outside
the hotel to smoke it. Alotaibi made sexual advances
toward A.D. in the elevator and outside the hotel, despite
A.D.’s resistance. Alotaibi then offered A.D. money and
marijuana in exchange for sex. A.D. testified that he
agreed but intended to trick Alotaibi into giving him
marijuana without engaging in any sexual acts.
They went back to the hotel room where Alotaibi’s
friends were staying, and Alotaibi took A.D. into the
bathroom and closed the door. Alotaibi told A.D. that he
wanted to have sex and began kissing and touching him.
A.D. testified that he told Alotaibi “no” and wanted to leave
the bathroom but Alotaibi was standing between him and
the door. A.D. testified that Alotaibi forced him to engage
in oral and anal intercourse. After leaving the hotel room,
A.D. reported to hotel security that he had been raped.
During his interview with the police, Alotaibi admitted
meeting A.D. in the hallway of the hotel and stated that
A.D. had asked him for money and weed. Alotaibi initially
denied touching A.D. or bringing him into the bathroom,
but then admitted engaging in the sexual acts in the
bathroom of the hotel room. According to Alotaibi, it was
A.D.’s idea to have sex in exchange for money and weed,
A.D. went willingly with him into the bathroom and
initiated the sexual acts, and Alotaibi did not force him.
Based upon this incident, Alotaibi was charged
with numerous offenses, including two counts of sexual
61a
Appendix H
assault. In settling jury instructions, Alotaibi requested
an instruction on statutory sexual seduction as a lesserincluded offense of sexual assault, arguing that evidence
indicated the victim consented to the sexual activity. The
district court determined that statutory sexual seduction
was not a lesser-included offense because it contained an
additional element (the consenting person being under
the age of 16) not required by sexual assault. Noting that
there was evidence of consent to support the lesser offense,
the district court instead offered to instruct the jury on
statutory sexual seduction as a lesser-related offense of
sexual assault, but Alotaibi declined such an instruction. 3
The jury found Alotaibi guilty of two counts of sexual
assault with a minor under 14 and other offenses. Alotaibi
now appeals from the judgment of conviction.
DISCUSSION
Alotaibi contends that the district court erred in
refusing to instruct the jury on statutory sexual seduction
as a lesser-included offense of the charged offense of
sexual assault with a minor because he presented evidence
that the sexual conduct was consensual. We review the
district court’s settling of jury instructions for an abuse
of discretion or judicial error. Crawford v. State, 121 Nev.
746, 748, 121 P.3d 582, 585 (2005).
3. The district court was not required to give an instruction
on a lesser-related offense, as the defendant is not entitled to such
an instruction. See Peck v. State, 116 Nev. 840, 844-45, 7 P.3d 470,
472-73 (2000), overruled on other grounds by Rosas v. State, 122
Nev. 1258, 147 P.3d 1101 (2006).
62a
Appendix H
NRS 175.501 provides that a “defendant may be found
guilty . . . of an offense necessarily included in the offense
charged.” We have held that this rule entitles a defendant
to an instruction on a “necessarily included” offense, i.e., a
lesser-included offense, as long as there is some evidence
to support a conviction on that offense. Rosas v. State, 122
Nev. 1258, 1267-69, 147 P.3d 1101, 1108-09 (2006).
In determining whether an uncharged offense is
a lesser-included offense of a charged offense so as to
warrant an instruction pursuant to NRS 175.501, we
apply the “elements test” from Blockburger v. United
States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Barton v. State, 117 Nev. 686, 694, 30 P.3d 1103, 1108
(2001), overruled on other grounds by Rosas, 122 Nev.
1258, 147 P.3d 1101. Under the elements test, an offense
is “necessarily included” in the charged offense if “all
of the elements of the lesser offense are included in the
elements of the greater offense,” id. at 690, 30 P.3d at
1106, such that “the offense charged cannot be committed
without committing the lesser offense,” id. (quoting Lisby
v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966)). Thus,
if the uncharged offense contains a necessary element
not included in the charged offense, then it is not a lesserincluded offense and no jury instruction is warranted.
Alotaibi suggests that this court has already resolved
the issue of whether statutory sexual seduction is a lesserincluded offense of sexual assault with a minor in Robinson
v. State, 110 Nev. 1137, 1138, 881 P.2d 667, 668 (1994). We
disagree. Though Robinson contains statements to the
effect that statutory sexual seduction is a lesser-included
63a
Appendix H
offense of sexual assault, the focus in that case was on
whether a juvenile who had been certified to be tried as
an adult also was an adult for purposes of statutory sexual
seduction, which includes the defendant’s age (18 years of
age or older) as an element. Robinson, which was decided
before this court clarified the test for determining whether
an offense is a lesser-included offense in Barton, provides
no analysis as to whether statutory sexual seduction is a
lesser-included offense of sexual assault, and thus any
statement on this issue is dictum.4 Accordingly, Robinson
is not controlling on the issue of whether statutory sexual
seduction is a lesser-included offense of sexual assault so
as to entitle a defendant to an instruction on the lesser,
uncharged offense. The issue thus has not been clearly
resolved by this court. 5
The statutes at issue raise several questions about
how to apply the elements test. Specifically, the parties
disagree about which elements are included in the
lesser and greater offenses. Thus, before comparing the
4. Before Barton, there was a lack of clarity and consistency
in Nevada caselaw as to how courts determine what constitutes a
lesser-included offense. As explained in Barton, this court initially
adopted the elements test in 1966 but then occasionally applied
other tests that considered the particular facts of the case as well
as the elements of the crimes. 117 Nev. at 689-92, 30 P.3d at 110507. Barton specifically disavowed the use of this “same conduct”
approach and explicitly reaffirmed the Blockburger elements test.
Id. at 694-95, 30 P.3d at 1108-09.
5. We disavow any language in Robinson and our previous
decisions suggesting that statutory sexual seduction is a lesserincluded offense of sexual assault.
64a
Appendix H
statutory elements of the two offenses, we must ascertain
what elements actually comprise those offenses.
Elements of the greater offense
In 2012, NRS 200.366(1) proscribed sexual assault
as follows:
A person who subjects another person to sexual
penetration, or who forces another person
to make a sexual penetration on himself or
another, or on a beast, against the will of
the victim or under conditions in which the
perpetrator knows or should know that the
victim is mentally or physically incapable of
resisting or understanding the nature of his
conduct, is guilty of sexual assault.
2007 Nev. Stat., ch. 528, § 7, at 3255. A separate subsection
of that statute, NRS 200.366(3)(c), provided for a sentence
of life with parole eligibility after 35 years if the offense
was committed “against a child under the age of 14 years”
and did not result in substantial bodily harm. Id. at 325556.
The State contends that the age of the victim is not
an element of sexual assault for purposes of the lesserincluded-offense analysis because the victim’s age only
goes to the sentence for the offense, Thus, the State
argues, because statutory sexual seduction requires
proof of the victim’s age as an element while the offense of
sexual assault does not, statutory sexual seduction is not
65a
Appendix H
a lesser-included offense.6 Alotaibi argues that the State’s
decision to charge him with the offense of “Sexual Assault
with a Minor Under 14 Years of Age” necessarily inserted
the age of the alleged victim as an element of that offense
and triggered the application of Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
We agree with the State that the age of the victim in
the sexual assault statute is not an element of the offense
for purposes of the lesser-included-offense analysis. We
acknowledge that our prior decisions have been somewhat
inconsistent in distinguishing elements required for
a conviction from those that only affect sentencing in
6. The State contends that this court has already concluded
as much in Slobodian v. State, 98 Nev. 52, 639 P.2d 561 (1982),
rejected by Barton, 117 Nev. at 689 & n.9, 30 P.3d at 1105 & n.9.
We disagree. In Slobodian, which concerned an earlier version of
the sexual assault statute, this court held that statutory sexual
seduction was not a lesser-included offense of sexual assault
because “the crime of statutory sexual seduction requires a
victim under the age of sixteen, while the age of the victim is
irrelevant to the crime of sexual assault.” 98 Nev. at 53, 639 P.2d
at 562 (internal footnote omitted). The earlier version of the
sexual assault statute in Slobodian defined sexual assault in the
same way as the statute in Alotaibi’s case, but differed in that it
provided for a specific sentence only where the victim was under
the age of 14 but contained no specific sentencing provision for a
victim under the age of 16. See id.; 1977 Nev. Stat., ch. 598, § 3, at
1626-27. Under this earlier statute, if the victim was between the
ages of 14 and 16, the victim’s age was not relevant to either guilt
or punishment. The Slobodian decision did not indicate whether
the victim was under the age of 14. Thus, the Slobodian decision
did not indicate whether the age of the victim is an element of
sexual assault when the offense is committed against a minor.
66a
Appendix H
applying the elements test. For example, in Rosas, we
included as elements of the lesser offense several factors
that served only to elevate the offense from a misdemeanor
to a gross misdemeanor. 122 Nev. at 1263, 147 P.3d at
1105. We take this opportunity to clarify that when an
element goes only to punishment and is not essential
to a finding of guilt, it is not an element of the offense
for purposes of determining whether a lesser-includedoffense instruction is warranted. Cf. LaChance v. State,
130 Nev. 263, 273-74, 321 P.3d 919, 927 (2014) (holding
that an element that does not affect guilt but rather only
determines the sentence is not an element of the offense
for the purposes of Blockburger). To the extent that
Rosas included elements only relevant to sentencing in
its analysis under the elements test, we disavow any such
application of the elements test.
Alotaibi’s arguments regarding Apprendi do not alter
our conclusion. In Apprendi, the United States Supreme
Court considered whether the Sixth Amendment’s
guarantee of a jury trial requires that a jury, rather than
a judge, determine any factor other than a prior conviction
that increases the statutorily authorized sentence for an
offense. 530 U.S. at 476. The Supreme Court held that,
regardless of how a fact is designated by a legislature,
any fact (other than a prior conviction) that authorizes
the imposition of a more severe sentence than permitted
by statute for the offense alone must be found by a jury
beyond a reasonable doubt. Id. Apprendi did not address
whether a sentencing factor is an element of an offense
when determining whether the offense is included within a
greater offense, and Alotaibi cites no controlling authority
67a
Appendix H
applying Apprendi to double jeopardy or lesser-includedoffense analysis.7
Here, the elements necessary to convict a defendant
of sexual assault are contained solely in subsection 1 of
NRS 200.366, whereas the age of the victim set forth in
subsection 3 is a factor for determining the appropriate
sentence for the offense. As clearly indicated by the
statute’s structure and language, the age of the victim is
not essential to a conviction for sexual assault; it serves
only to increase the minimum sentence that may be
imposed. Thus, it is a sentencing factor and not an element
of the offense for purposes of the elements test. As such,
for purposes of the elements test, the offense of sexual
assault, regardless of whether it was committed against
a minor, has two statutory elements:
(1) “subject[ing] another person to sexual
penetration, or . . . forc[ing] another person
to make a sexual penetration on himself or
another, or on a beast,”
7. Notably, other courts have rejected the application of
Apprendi to double jeopardy or lesser-included-offense analysis.
See, e.g., Smith v. Hedgpeth, 706 F.3d 1099, 1106 (9th Cir. 2013)
(holding that Apprendi did not clearly establish that a state court
must “consider sentencing enhancements as an element of an
offense for purposes of the Double Jeopardy Clause”); People v.
Alarcon, 210 Cal. App. 4th 432, 148 Cal. Rptr. 3d 345, 348 (Ct. App.
2012) (rejecting contention that Apprendi requires enhancements
to be considered in determining whether an uncharged offense is
necessarily included in a charged offense).
68a
Appendix H
(2) “against the will of the victim or under
conditions in which the perpetrator knows
or should know that the victim is mentally
or physically incapable of resisting or
understanding the nature of his conduct.”
2007 Nev. Stat., ch. 528, § 7, at 3255 (NRS 200.366(1)).
Elements of the lesser offense
Having identified the elements of the greater offense,
we turn to the elements of the lesser offense. In 2012,
statutory sexual seduction was defined in NRS 200.364(5)
as:
(a) Ordinary sexual intercourse, anal
intercourse, cunnilingus or fellatio committed
by a person 18 years of age or older with a
person under the age of 16 years; or
( b) A ny ot he r s e x u a l p enet r at ion
committed by a person 18 years of age or older
with a person under the age of 16 years with the
intent of arousing, appealing to, or gratifying
the lust or passions or sexual desires of either
of the persons.
2009 Nev. Stat., ch. 300, § 1.1, at 1296. The statute
therefore sets forth two alternative means of committing
statutory sexual seduction: (a) engaging in sexual
intercourse, anal intercourse, cunnilingus, or fellatio; or
(b) engaging in other sexual penetration with the intent of
69a
Appendix H
arousing, appealing to, or gratifying the lust or passions
or sexual desires of either person. The parties disagree
on how to apply the elements test where, as here, the
statute provides different ways for a person to commit
the offense. The State asserts that all of the elements of
both alternative means of committing the lesser offense
must be included in the greater offense, while Alotaibi
focuses only on the elements of one of the alternatives,
NRS 200.364(5)(a), that is most consistent with the sexual
acts alleged in this case.
We conclude that where a statute provides alternative
ways of committing an uncharged offense, the elements
of only one of those alternatives need to be included
in the charged offense for the uncharged offense to be
lesser included. See 6 Wayne R. LaFave, et al., Criminal
Procedure § 24.8(e) (3d ed. 2007) (“When the lesser
offense is one defined by statute as committed in several
different ways, it is a lesser-included offense if the
higher offense invariably includes at least one of these
alternatives.”). This approach comports with that taken
by other jurisdictions that have considered this issue. See,
e.g., United States v. McCullough, 348 F.3d 620, 626 (7th
Cir. 2003) (holding .that “alternative means of satisfying
an element in a lesser offense does not preclude it from
being a lesser-included offense”); United States v. Alfisi,
308 F.3d 144, 152 n.6 (2d Cir. 2002) (finding an offense
to be a lesser-included offense “notwithstanding the
existence of possible or alternative, and non-mandatory,
elements in the lesser offense not contained in the
greater offense”); State v. Waller, 450 N.W.2d 864, 865
70a
Appendix H
(Iowa 1990) (“When the statute defines [a lesser] offense
alternatively, . . . the relevant definition is the one for
the offense involved in the particular prosecution.”). In
particular, we agree with the Second Circuit’s reasoning
in Alfisi, whereby the court rejected an “unnecessary and
formalistic requirement on how [the legislature] drafts
criminal statutes,” opting instead to view no differently
a statute drafted as a “singular but disjunctive whole”
from a statute dividing the alternative elements “into
several discreet and independent sections.” 308 F.3d at
152 n.6. Likewise, here, the fact that the Legislature
included the alternative means of committing statutory
sexual seduction in disjunctive subsections of the statute
does not preclude each alternative means from being a
lesser-included offense.
Here, neither of the alternatives in NRS 200.364(5)
is necessarily included in the offense of sexual assault.
Both alternatives include the age of the victim (under 16
years of age) as an element of the offense that is required
for conviction. 2009 Nev. Stat., ch. 300, § 1.1, at 1296. As
explained above, the age of the victim is not an element
required for a conviction of the greater offense (sexual
assault). The alternative set forth in NRS 200.364(5)(b)
also includes an intent element that is not included in the
greater offense—that the sexual act was committed “with
the intent of arousing, appealing to, or gratifying the
lust or passions or sexual desires of the defendant or the
victim],” Id. Therefore, under the elements test, statutory
sexual seduction is not a lesser-included offense of sexual
71a
Appendix H
assault, and Alotaibi was not entitled to an instruction
on statutory sexual seduction. As such, the district court
properly refused to instruct the jury on statutory sexual
seduction. We therefore affirm the judgment of conviction.
/s/ Hardesty
Hardesty
, J.
/s/ Cherry
, C.J.
Cherry
/s/ Douglas
Douglas
, J.
/s/ Gibbons
, J.
Gibbons
/s/ Pickering
Pickering
, J.
/s/ Parraguirre, J.
Parraguirre
/s/ Stiglich
Stiglich
, J.
We concur:
72a
Appendix
I
APPENDIX I — ORDER
GRANTING
EN BANC
RECONSIDERATION OF THE SUPREME COURT OF
THE STATE OF NEVADA, FILED NOVEMBER 3, 2017
IN THE SUPREME COURT OF THE
STATE OF NEVADA
No. 67380
MAZEN ALOTAIBI,
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
Filed November 3, 2017
ORDER GRANTING EN BANC RECONSIDERATION
Hav i ng considered t he pet it ion for en ba nc
reconsideration in this matter, this court has determined
that reconsideration is warranted to maintain uniformity
of decisions and address a substantial precedential issue.1
Accordingly, the petition for en banc reconsideration is
granted and this matter shall stand submitted on the
briefs and record previously filed. See NRAP 40A(f).
1. Although we generally request an answer before granting
a petition for en banc reconsideration, NRAP 40A(e), we conclude
that an answer is not necessary in this case.
73a
Appendix I
It is so ORDERED.
/s/ Cherry
, C.J.
74a
Appendix
J
APPENDIX J — ORDER
DENYING
REHEARING
OF THE SUPREME COURT OF THE STATE OF
NEVADA, FILED APRIL 26, 2017
IN THE SUPREME COURT OF THE
STATE OF NEVADA
No. 67380
MAZEN ALOTAIBI,
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
Filed April 26, 2017
ORDER DENYING REHEARING
This is a petition for rehearing of our February 28,
2017, order affirming appellant’s judgment of conviction.
Appellant asserts that rehearing is warranted because
this court overlooked or failed to consider Robinson v.
State, 110 Nev. 1137, 881 P.2d 667 (1994), and Apprendi
v. New Jersey, 530 U.S. 466 (2000).
We considered Robinson and Apprendi in making
our decision and concluded that those cases do not warrant
relief for appellant. First, though the Robinson decision
75a
Appendix J
contains statements to the effect of statutory sexual
seduction being a lesser-included offense of sexual assault,
the focus in that case was on whether a juvenile who
had been certified to be tried as an adult on charges of
sexual assault was entitled to an instruction on statutory
sexual seduction. Robinson, which was decided before
Barton v. State, 117 Nev. 686, 694, 30 P.3d 1103, 1108
(2001), overruled on other grounds by Rosas v. State,
122 Nev. 1258, 147 P.3d 1101 (2006), provides no analysis
on statutory sexual seduction being a lesser-included
offense of sexual assault with a minor, and thus any
statement on this issue is dictum. Accordingly, Robinson
is not controlling on the issue of whether statutory sexual
seduction is a lesser-included offense of sexual assault with
a minor so as to entitle a defendant to an instruction on
the lesser-included offense.
S e cond , Ap p r e n di — a c a se ab out t he S i x t h
Amendment right to a jury determination on any factor
(other than a prior conviction) that increases the statutorily
authorized sentence for an offense-does not address the
analysis used for determining whether an offense is a
lesser-included offense. Appellant cites no controlling
authority applying Apprendi to double jeopardy or lesserincluded offense analysis and thus fails to demonstrate
that Apprendi requires the age of the victim to be an
element of sexual assault with a minor for purposes of
the Blockburger 1 “elements” test. Because appellant has
not demonstrated a basis for rehearing, NRAP 40(c)(2),
we deny the petition for rehearing.
1. Blockburger v. United States, 284 U.S. 299 (1932).
76a
Appendix J
It is so ORDERED.
/s/ Hardesty
Hardesty
/s/ Parraguirre
Parraguirre
, J.
/s/ Stiglich
Stiglich
, J.
, J.
77a
Appendix
APPENDIX K — ORDER
OFKAFFIRMANCE OF
THE SUPREME COURT OF THE STATE OF
NEVADA, FILED FEBRUARY 28, 2017
IN THE SUPREME COURT
OF THE STATE OF NEVADA
No. 67380
MAZEN ALOTAIBI,
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
Filed February 28, 2017
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction,
pursuant to a jury verdict, of burglary, first-degree
kidnapping, two counts of sexual assault with a minor
under 14 years of age, two counts of lewdness with a
minor under 14 years of age, and coercion. Eighth Judicial
District Court, Clark County; Stefany Miley, Judge.
First, appellant Mazen Alotaibi argues that the
district court erred in failing to instruct the jury that
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Appendix K
statutory sexual seduction is a lesser-included offense
of sexual assault with a minor under 14 years of age. We
apply the elements test to determine whether an offense
is a lesser-included offense of the charged offense so
as to warrant a jury instruction. See Barton v. State,
117 Nev. 686, 694, 30 P.3d 1103, 1108 (2001), overruled
on other grounds by Rosas v. State, 122 Nev. 1258, 147
P.3d 1101 (2006). An offense is “necessarily included” in
the offense charged if “the offense charged cannot be
committed without committing the lesser offense.” Id.
at 690, 30 P.3d at 1106 (quoting Lisby v. State, 82 Nev.
183, 187, 414 P.2d 592, 594 (1966)). A comparison of the
relevant statutes in effect at the time Alotaibi committed
the offenses shows that it was possible to commit sexual
assault without necessarily committing statutory sexual
seduction.1 Compare 2009 Nev. Stat., ch. 300, § 1.1, at 1296
(NRS 200.364(5)), with 2007 Nev. Stat., ch. 528, § 7, at
3255 (NRS 200.366(1)). 2 Thus, statutory sexual seduction
was not a lesser-included offense of sexual assault with a
minor, and Alotaibi was not entitled to an instruction on it.
Next, Alotaibi argues that the district court abused
its discretion in denying his motion for a new trial based
on newly discovered evidence. We review a district court’s
1. We reach the same conclusion even if we accept Alotaibi’s
position and consider only the elements of the offense as charged
in the charging document.
2. NRS 200.366(1) was amended in 2015 to provide that sexual
penetration of a child under the age of 14 years is sexual assault
regardless of consent.
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Appendix K
decision whether to grant a new trial for an abuse of
discretion. State v. Carroll, 109 Nev. 975, 977, 860 P.2d 179,
180 (1993). Alotaibi’s motion was based on an affidavit from
a State witness recanting part of his trial testimony about
Alotaibi driving a car shortly before he committed the
offenses. Alotaibi argues that this recantation warrants
a new trial because the false testimony about him driving
directly undermined his defense of being too intoxicated
to form the requisite mental state for the offenses. We
conclude that the district court did not abuse its discretion
in denying the motion for a new trial. See Cattier v.
Warden, Nev. Women’s Corr. Ctr., 111 Nev. 976, 990,
901 P.2d 619, 627-28 (1995) (explaining the four required
components for granting a motion for a new trial based
upon a recantation). The district court was not satisfied
that the trial testimony was false and determined that
the witness’s conflicting accounts demonstrated at most
that his recollection of the event could not be trusted.
The record supports this determination, given that the
witness admitted that he initially believed that Alotaibi
was the driver but later decided that Alotaibi had been
too drunk to drive. Moreover, the record supports the
district court’s determination that it was not probable that
the outcome of the trial would have been different without
the allegedly false testimony. The witness testified that
Alotaibi was extremely intoxicated, other witnesses also
testified to Alotaibi’s level of intoxication, and the jury had
the opportunity to observe Alotaibi in a hotel surveillance
video and in a recorded interview conducted within hours
of the offenses. Thus, we conclude that Alotaibi has not
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Appendix K
demonstrated that the district court abused its discretion
in denying his motion for a new trial.
Finally, Alotaibi argues that his trial counsel provided
ineffective assistance by failing to insist on a jury
instruction and interview a witness. Claims of ineffective
assistance of counsel should be raised in postconviction
proceedings in the district court in the first instance
and are generally not appropriate for review on direct
appeal unless there has been an evidentiary hearing or
an evidentiary hearing would be unnecessary. Pellegrini
v. State, 117 Nev. 860, 883-84, 34 P.3d 519, 534-35 (2001);
Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729
(1995). Alotaibi has not established that either exception
applies, and thus we decline to address his ineffectiveassistance arguments. For the foregoing reasons, we
ORDER the judgment of conviction AFFIRMED.
/s/ Hardesty
Hardesty
, J.
/s/ Parraguirre , J.
/s/ Stiglich
Parraguirre Stiglich
, J.
81a
L
APPENDIX LAppendix
— FINDINGS
OF FACT,
CONCLUSIONS OF LAW AND ORDER AND
DECISION OF THE DISTRICT COURT OF CLARK
COUNTY, NEVADA, FILED NOVEMBER 18, 2014
DISTRICT COURT
CLARK COUNTY, NEVADA
CASE NO.: C287173
DEPARTMENT XXIII
STATE OF NEVADA,
Plaintiff,
v.
MAZEN ALOTAIBI,
Defendant.
Filed November 18, 2014
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND ORDER AND DECISION
I.
PROCEDURAL HISTORY
This matter was last before the Court on September
12, 2014 pursuant to Defendant’s Motion for New Trial
and/or for an Evidentiary Hearing, the State’s Opposition
thereto and Defendant’s Reply. Defendant was present,
represented by Dominic P. Gentile, Esq. and Anjali
D. Webster, Esq. The State of Nevada was present
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Appendix L
represented by Steven Wolfson, District Attorney, by and
through Jacqueline Bluth, Esq. and Mary Kay Holthus,
Esq. Defendant’s Motion argued a new trial was necessary
due to the recanted trial testimony of Rashed Alshehri.
Additionally, Defendant sought an evidentiary hearing
and/or new trial based upon allegations of ineffective
assistance by trial counsel. The State denied Defendant’s
contentions in their entirety and further argued that any
claims for relief for ineffective assistance of counsel should
instead be raised in post-conviction relief.
Defendant Mazen Alotaibi was charged by way of
Information with the crimes of Burglary (Category
B Felony—NRS 205.060); First Degree Kidnapping
(Category A Felony—NRS 200.310, 200.320); Sexual
Assault With a Minor Under Fourteen Years of Age
(Category A Felony—NRS 200.364, 200.366); Lewdness
with a Child Under the Age of 14 (Category A Felony—
NRS 201.230) and Coercion Sexually Motivated (Category
B Felony—NRS 207.190, 207.193). The State alleged the
above crimes occurred on or about December 31, 2012 at
the Circus Circus Hotel and Casino (hereinafter Circus
Circus) where the minor victim A[REDACTED] was
staying as a guest along with his grandmother.
The two-week jury trial for this case began October
10, 2013. On October 23, 2013, Defendant was found guilty
on the following counts: Count 1, Burglary; Count 2, First
Degree Kidnapping; Counts 3 and 5, Sexual Assault with
Minor Under Fourteen Years of Age; Counts 7 and 8,
Lewdness With a Child Under The Age of 14; and Count
9, Coercion (misdemeanor). Defendant was found not
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Appendix L
guilty on Counts 4 and 6, Lewdness With a Child Under
the Age of 14.
A sentencing date was originally set for December
16, 2013 but was later postponed to January 29, 2014. On
January 29, 2014, Defendant’s trial counsel Don Chairez,
Esq. withdrew from the case. Defendant then retained
new counsel, namely Vincent Savarese III, Esq. and
Dominic Gentile, Esq. of the law firm Gordon Silver. The
Court granted a sixty-day continuance for sentencing due
to the change of counsel. On May 7, 2014, a Stipulation and
Order to continue the sentencing date to June 4, 2014, was
filed with the Court.
Defendant filed a Motion for New Trial on May 27,
2014 based upon the recanted testimony of Mr. Alshehri.
Mr. Alshehri first testified during the trial as follows:
Q. You guys let him drive that drunk for 30
minutes from the parking, public parking to
the Circus Circus?
A.
Yes.
Q.
Why?
A. Because we are all of us like drunk, but he
just said I can drive, I can drive.
A.
Yeah.
Q.
Did he have any problems driving?
84a
Appendix L
A. I think like just speeding and something
like that.
Q.
But otherwise, he was able to drive?
A.
He was driving, yes.
Alshehri Trial Tr. 43:113,
The recanted testimony is set forth in Mr. Alshehri’s
Affidavit, attached as Exhibit 4 to Defendant’s Motion For
New Trial And/Or Evidentiary Hearing. Mr. Alshehri
testified in that Affidavit in pertinent part as follows:
My testimony was false. Mazen Alotaibi did not
drive any vehicle after we left the strip club at
issue. Nor did Mazen Alotaibi drive any vehicle
from a public parking lot to Circus Circus. Once
we arrived in Las Vegas and parked the vehicle
in the lot, Mazen Alotaibi never drove again.
Alshehri Aff. 2:5-8.
In support of the request for new trial, Defendant also
requested this Court set an evidentiary hearing. Upon
review of the sworn affidavit of Mr. Alshehri this Court
determined an evidentiary hearing was not necessary
to a determination of Defendant’s Request for a New
Trial. Defendant also requested the Court allow a presentencing evidentiary hearing on the issue of ineffective
assistance of trial counsel.
85a
Appendix L
On July 16, 2014 the State filed its Opposition to
Defendant’s Motion. The State’s Opposition argued that
pursuant to Sanborn v. State, 107 Nev. 399, 812 P.2d
1279 (1991) and Callier v. Warden, Nevada Women’s
Corr. Ctr., 111 Nev. 976, 901 P.2d 619 (1995) a new trial
was not warranted on the basis of “newly discovered” or
“recanted” testimony. The State argued further that even
assuming Mr. Alshehri’s trial testimony was false, a new
trial was not warranted given the overwhelming weight
of the evidence presented at trial. The State also argued
Defendant’s claims for ineffective assistance of counsel
should be raised in a request for post-conviction relief and
not in a Motion for New Trial. Defendant filed a reply on
August 1, 2014.
The Court postponed sentencing pending the hearing
and decision on Defendant’s Motion for New Trial. Having
considered the matter, including briefs, transcripts,
arguments of counsel, and all documents on file herein,
the Court now makes the following findings of fact and
conclusions of law.
II. DISCUSSION
Nev. Rev. Stat. § 176.515(1) provides “[t]he court may
grant a new trial to a defendant if required as a matter
of law or on the ground of newly discovered evidence.” In
Callier, the Court addressed the standard under which
witness recantations, either in the context of new trial
motion or in a habeas petition, should be assessed:
Numerous cour ts have deter mined that
recantations should be viewed with suspicion
86a
Appendix L
and that before granting a new trial, the trial
court must be satisfied that the witness’s
trial testimony was false. In other words,
in evaluating recantation cases, whether in
the context of a new trial motion or a habeas
petition, the trial court should apply the
following standard: (1) the court is satisfied
that the trial testimony of the material witness
was false; (2) the evidence showing that the
false testimony was introduced at trial is newly
discovered; (3) the evidence could not have been
discovered and produced for trial even with
the exercise of reasonable diligence; and (4)
it is probable that had the false testimony not
been admitted, a different result would have
occurred at trial. Only if each component is met
should the trial court order a new trial.
Id. at 627-628 (emphasis added).
The Court finds Callier provides the standard for
assessments of witness recantations; it is unnecessary to
analyze the facts presented in the instant action under
the similar Sanborn standard. It is within the trial court’s
discretion to grant or deny a motion for a new trial based
on the grounds of newly discovered evidence. See Sanborn,
107 Nev. at 406, 812 P.2d at 1284. The decision of the trial
court regarding the granting or denying of a motion for
new trial will not be overturned absent an abuse of that
discretion. See Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d
970, 982 (2008).
87a
Appendix L
A.
The Court is not satisfied the witness’s trial
testimony was false.
A finding that the trial testimony was indeed
false is essential in evaluating alleged perjury cases,
therefore the Court shall address this prong of Callier
first. The Defendant bases his Motion for New Trial on
the recanted testimony of Mr. Alshehri as set forth in
Mr. Alshehri’s affidavit. Mr. Alshehri’s affidavit alleges
that following his pretrial interview with the State, but
before trial, he realized he was incorrect in his assertion
that the Defendant had driven to Circus Circus because
the Defendant was in fact too intoxicated to drive. Mr.
Alshehri indicated in his affidavit that contrary to his
prior testimony, “[he] testified falsely at trial that Mazen
Alotaibi drive a vehicle after we left the strip club at issue
because I felt threatened by the prosecution for the State
of Nevada to do so.” Alshehri Aff. 3:19-20. The Defendant
now claims Callier warrants a new trial, alleging Mr.
Alshehri’s Affidavit proves his trial testimony was false.
As stated in Callier, recantations should be viewed
with suspicion. Callier, 901 P.2d at 627. Here, Mr. Alshehri
stated in his affidavit that he feared he would be arrested
if he did not come to Las Vegas for the Sept. 14, 2013
interview. Alshehri Aff. 2:20-22. He then stated that a
few weeks later he was called back for another interview,
during which he indicated that the Defendant drove the
vehicle from the Olympic Gardens to the Circus Circus
Hotel. Alshehri Aff. 3:3-9. Following his second interview,
Mr. Alshehri states “upon reflection and further thought I
realized that it was not Mazen who drove, as he was far too
88a
Appendix L
drunk to do so. It was definitely Muhammed who drove.”
Alshehri Aff. 3:10-11. Mr. Alshehri states that his reason
for testifying that Mazen Alotaibi drove that evening is
due to feeling threatened by prosecution by the State of
Nevada for failing to do so.
Viewing Mr. Alshehri’s recantation with suspicion, the
Court is not satisfied the trial testimony was false. There
is no evidence that the State threatened Mr. Alshehri
with prosecution unless he testified that the Defendant
was the driver, nor that he would be prosecuted for giving
conflicting testimony at trial. Mr. Alshehri also stated
unequivocally during a pretrial conference that Alotaibi
not only drove, but that he “drove good” other than
speeding a little. Trial Tr., Ruth Leon 42. Mr. Alshehri
also noted at the conference that the Defendant had lost
the keys to the car but eventually found them. No other
witnesses testified to whether the Defendant drove that
evening, so the assertion that the trial testimony is false
cannot be supported by any other evidence. Mr. Aleshehri
testified at trial and his credibility was tested by crossexamination. All the Court may determine from Mr.
Alshehri’s conflicting accounts of who drove from the
Olympic Garden to Circus Circus that evening is that Mr.
Alshehri’s recollection of the event cannot be trusted. The
Court cannot determine whether either retelling of the
events is certifiably true or false.
COURT FINDS Defendant has failed to demonstrate
the trial testimony of Mr. Alshehri was false.
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Appendix L
B. The evidence is not newly discovered.
The second prong of Cattier instructs the trial court
to determine whether the evidence allegedly exposing
the trial testimony as false was recently discovered.
The Defendant argues the evidence is newly discovered
because Mr. Alshehri did not seek to recant his testimony
until after the conclusion of the trig. This argument fails.
The substance of the evidence offered by the defense
is that the Defendant could not drive from the Olympic
Garden to Circus Circus because he was too intoxicated,
At the time of the trial, both the State and the Defendant
presented significant amounts of evidence regarding the
intoxication and impairment level of the Defendant. The
jury heard testimony by Mr. Alshehri, the Victim, the
Defense’s witness Jennifer Melendez, and an investigator
with the District Attorney’s office. The relevant testimony
from those witnesses is reproduced below.
Trial Testimony of State’s Witness Rashed Alshehri
Q.
How long were you at that first casino?
A.
About two, two and a h
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