Case 2:14-cv-02083-RFB-DJA Document 73 Filed 04/15/25 Page 1 of 66
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Petitioner
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`GEORGE CHESTER ARTHUR,
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`v.
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`WARDEN NEVEN, et al.,
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`Respondents.
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`Case No.: 2:14-cv-02083-RFB-DJA
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`ORDER
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`This case is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by George
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`Chester Arthur. This case is before the Court for adjudication of the merits of Arthur’s petition.
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`For the reasons discussed below, the Court grants the petition.
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`I.
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`BACKGROUND
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`Arthur’s convictions are the result of events that occurred in Clark County, Nevada
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`between February 9, 2007, and February 11, 2007. Chrissandra Barnes testified that she, her
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`mother, and her sister, Monica Taitano, came home from an evening out and found her stepfather,
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`Samuel Andrade, deceased on the floor and his vehicle missing. Andrade had been stabbed in the
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`head eleven times, had his throat slit, and had also been stabbed in the chest and back. It was
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`immediately suspected that Arthur, Taitano’s estranged, long-term boyfriend, had killed Andrade.
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`A few days later, law enforcement attempted to perform a traffic stop on Arthur, but after
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`initially stopping in the parking lot of a Wal-Mart store, Arthur drove away from law enforcement,
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`accelerating to speeds of 90 to 100 miles per hour. At least ten other law enforcement vehicles and
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`a helicopter pursued Arthur for 38 miles. Arthur’s vehicle was eventually stopped by a spike strip.
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`Arthur then exited his vehicle and was pursued on foot before being tackled and taken into custody.
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`At that time, Arthur had some bruising, swelling, and scratch marks on his face and some injuries
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`to his right forearm and hands.
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`Arthur made a telephone call to Taitano while he was in custody and denied involvement
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`in Andrade’s murder. Arthur also told a friend the morning after the killing that he received some
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`injuries the previous night from being “jumped by two black guys” at a casino. However, a forensic
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`lab later determined that Arthur’s blood and DNA were found in the Andrade home. At his trial,
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`Arthur admitted that he killed Andrade, but he alleged that he acted in self-defense.
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`Even though he was not welcome at the Andrade home, Arthur testified that he went there
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`on the evening of February 9, 2007, because he wanted to see Taitano, who was living at the
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`Andrade home. Arthur knew that Taitano had gone out that evening with her mother and sister,
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`but he figured that they would have been back home by then. Andrade answered the door, and,
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`after telling Arthur that they had not yet returned, invited Arthur inside to talk. Andrade directed
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`Arthur to the master bedroom where Arthur believed Andrade would offer him an alcoholic
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`beverage or to “smoke a joint.” When they got into the bedroom, Andrade was holding a large
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`knife, told Arthur that he could kill him, and then tried to stab Arthur in the stomach. Andrade cut
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`Arthur “underneath the elbow,” and at that point, Arthur testified that he was “scared and terrified
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`. . . of getting killed.” Arthur then “had to charge him to try to save [his] life.” Arthur and Andrade
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`“struggle[d] for the knife” and “roll[ed] around . . . on the bed.”
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`Arthur did not remember stabbing Andrade or cutting his throat. Rather, the next thing
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`Arthur remembered was being in the hallway bathroom and realizing that “there’s blood
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`everywhere.” Arthur “came to” while he was driving Andrade’s vehicle. He did not remember
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`trying to clean up the crime scene, using a bath towel to soak up Andrade’s blood, using a towel
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`to wash himself off, or where he disposed of his clothes. Andrade pulled the vehicle over, got
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`directions back to the Andrade home, walked back to their residence, got in his own vehicle, and
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`left.
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`On May 7, 2008, following a jury trial, Arthur was found guilty of burglary and first-degree
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`murder with the use of a deadly weapon. Arthur also pleaded guilty to failing to stop on the signal
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`of a police officer. Arthur was sentenced to 48 to 120 months for the burglary conviction; 20 years
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`to life for the first-degree murder conviction plus an additional and consecutive term of 20 years
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`to life for the deadly weapon enhancement; and 24 to 60 months for the failure to stop conviction.
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`Arthur appealed, and the Nevada Supreme Court affirmed on October 4, 2010. Remittitur issued
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`on November 1, 2010.
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`Arthur filed a state habeas petition on October 6, 2011. The state district court granted
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`Arthur’s petition on April 1, 2013. The State appealed, and the Nevada Supreme Court reversed
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`on November 3, 2014. Arthur then filed his federal habeas petition on December 9, 2014.
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`Following the Nevada Supreme Court’s reversal, the state district court issued a new order
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`denying Arthur’s state habeas petition on February 9, 2015. Arthur moved for a stay and abeyance
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`of his federal proceedings pending final resolution of his claims in state court, which the Court
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`granted on September 27, 2016. Arthur appealed the state district court’s denial, and the Nevada
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`Supreme Court affirmed on October 13, 2016. Remittitur issued on November 7, 2016.
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`Arthur moved to lift the stay on his federal proceedings and filed his first amended petition
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`on January 31, 2017. The Court lifted the stay on August 22, 2017. Respondents moved to partially
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`dismiss Arthur’s amended petition on March 2, 2018. The Court granted the motion, in part,
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`dismissing ground 2.3 of the first amended petition and deferring ruling on the procedural default
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`of ground 10. Respondents answered the remaining claims in Arthur’s first amended petition on
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`February 25, 2019. Arthur replied on August 26, 2019
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`II.
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`Arthur asserts the following violations of his federal constitutional rights:
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`The state district court refused to excuse two jurors for cause;
`The state district court admitted inadmissible evidence;
`The state district court improperly allowed a late-noticed witness to testify
`There was prosecutorial misconduct;
`His first-degree murder conviction was based on an improper theory of
`felony murder;
`Several of the jury instructions were confusing, misleading, or a
`misstatement of the law;
`There was insufficient evidence supporting his convictions;
`There was cumulative error;
`There was ineffective assistance of his trial counsel;
`The State improperly shifted the burden of proof; and
`There was ineffective assistance of his appellate counsel.
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`STANDARD OF REVIEW
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`28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas
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`corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”):
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` A
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`An application for a writ of habeas corpus on behalf of a person in custody pursuant
`to the judgment of a State court shall not be granted with respect to any claim that
`was adjudicated on the merits in State court proceedings unless the adjudication of
`the claim –
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`(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
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`(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.
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` state court decision is contrary to clearly established Supreme Court precedent, within the
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`meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law
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`set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are
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`materially indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538
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`U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v.
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`Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of clearly
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`established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state
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`court identifies the correct governing legal principle from [the Supreme] Court’s decisions but
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`unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75 (quoting
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`Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause requires the state court
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`decision to be more than incorrect or erroneous. The state court’s application of clearly
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`established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10)
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`(internal citation omitted).
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`The Supreme Court has instructed that “[a] state court’s determination that a claim lacks
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`merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
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`correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
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`Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a
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`strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.
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`at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
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`(describing the standard as a “difficult to meet” and “highly deferential standard for evaluating
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`state-court rulings, which demands that state-court decisions be given the benefit of the doubt”
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`(internal quotation marks and citations omitted)).
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`III. DISCUSSION
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`A.
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`Ground 1
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`In Ground 1, Arthur argues that his federal constitutional rights were violated when the
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`state district court refused to excuse two jurors for cause, namely Cindy Rogers and David
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`Gregware. Arthur explains that his trial counsel was forced to use his peremptory challenges to
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`remove Gregware and Rogers, and if he had not been forced to do so, he would have used those
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`preemptory challenges on Terrell Otis and Susan Johnson. Id. at 13, 17. Respondents contend that
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`the Nevada Supreme Court correctly focused on the panel that deliberated Arthur’s guilt, not on
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`the alleged failure of the state district court to refuse to strike Rogers and Gregware for cause.
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`In affirming Arthur’s conviction on direct appeal, the Nevada Supreme Court held:
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`Arthur argues that the district court erred by failing to excuse two prospective jurors
`for cause. A decision to remove a prospective juror for cause remains within the
`district court’s broad discretion. Weber v. State, 121 Nev. 554, 580, 119 P.3d 107,
`125 (2005).
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`Either party may challenge a juror for cause if it is believed that the juror cannot
`adjudicate the facts fairly, NRS 175.036(1); however, “[t]he test for evaluating
`whether a juror should have been removed for cause is ‘whether a prospective
`juror’s views would prevent or substantially impair the performance of his duties
`as a juror in accordance with his instructions and his oath.’” Weber, 121 Nev. at
`580, 119 P.3d at 125 (quoting Leonard v. State, 117 Nev. 53, 65, 17 P.3d 397, 405
`(2001) (internal quotation omitted)).
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`Here, Arthur contends that he was prejudiced by the district court’s error in failing
`to excuse two prospective jurors. Although one of those prospective jurors
`represented that she had past experiences with domestic abuse, and the other
`prospective juror expressed anxiety that he could not manage his business while
`sitting on the jury, both prospective jurors unconditionally represented that they
`would be fair and impartial in performing their duties. The district court refused
`Arthur’s request to excuse these prospective jurors for cause, which Arthur claims
`resulted in prejudice because he then had to exhaust his preemptory challenges and
`was precluded from later removing two other ultimately impaneled jurors.
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`Claims of prejudice “based on [ ] ‘wasted’ preemptory challenge[s] . . . must focus
`on whether the impaneled jury was impartial.” Wesley v. State, 112 Nev. 503, 511,
`916 P.2d 793, 799 (1996). On appeal, Arthur requests that we retreat from this
`standard, but we decline to do so.
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`Arthur argues that had he not exhausted his peremptory challenges on the two
`prospective jurors described above, he would have challenged two other specific
`jurors. Our review of the record indicates that, although one of those other jurors
`was impaneled initially, she was subsequently removed for health reasons and did
`not participate in the jury’s deliberations. As such, Arthur has failed to demonstrate
`partiality attributable to this juror. During voir dire, the other juror Arthur indicates
`he would have challenged if he had not exhausted his preemptory challenges
`represented that his father had been a victim of a murder but unhesitantly expressed
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`that, despite the potential similarities of the current case with his father’s murder,
`he would be fair and impartial. Because Arthur has failed to establish how this
`juror’s participation on the jury panel created a partial jury, we conclude that the
`district court did not abuse its discretion by refusing to remove the previously
`described prospective jurors for cause and that Arthur was not prejudiced by
`exhausting his preemptory challenges on those jurors.
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`The Nevada Supreme Court’s rejection of Arthur’s claim was neither contrary to nor an
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`unreasonable application of clearly established law as determined by the United States Supreme
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`Court.
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`Arthur challenged prospective jurors Gregware and Rogers for cause. Gregware was a
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`“[s]mall business owner” and the “[o]nly person working for [his] business.” Gregware had
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`“anxiety about being [at Arthur’s trial] because of [his] business,” as he was “losing money, and
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`also potential income in the future.” Although Gregware indicated that he “could be a fair juror,”
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`Gregware answered in the affirmative when asked if his anxiety “might cause [him] to miss things
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`like testimony” and in the negative when asked if he would “want 12 individuals such as [him]self
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`to be on” his hypothetical jury. However, when the State indicated that the trial was only supposed
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`to last a week or so, Gregware stated that, given that information, he “could give everybody a fair
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`shot and listen to the testimony.” The state district court denied Arthur’s challenge for cause,
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`explaining that “[t]his man . . . would have said anything he had to say to get off the jury, within
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`bounds of reasonableness.” Thereafter, Arthur’s trial counsel used a peremptory challenge to
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`remove Gregware.
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`Turning to Rogers, she indicated that she might have a difficult time being unbiased if the
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`facts of the case involved domestic violence between a man and a woman, as she had personal
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`experience with domestic violence. After the state district court told Rogers that the “person that’s
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`alleged to have been killed in this case is a man, not a woman,” Rogers stated, “[t]hen I would be
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`a fair, be able to make a fair decision.” Rogers also indicated that she “would definitely give it
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`[her] best shot to look at all the facts” and “would be able to be fair.” However, following voir dire
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`from Arthur’s trial counsel, Rogers stated that she “definitely ha[s] a bias towards men who can’t
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`let things go when it’s over” and questioned “[w]hy someone would go to someone’s house where
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`they didn’t live and be there or why they couldn’t accept the end of a relationship and continue to
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`harass someone.” In denying Arthur’s challenge for cause, the state district court stated that it did
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`not believe that Rogers would “be particularly biased or not a fair juror.” Arthur’s trial counsel
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`then exercised a peremptory challenge on Rogers.
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`Arthur’s trial counsel indicated that if Gregware and Rogers had been stricken for cause,
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`he would have used his preemptory challenges on Terrell Otis and Susan Johnson instead. Otis’s
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`“father was the victim of a homicide.” And Johnson indicated that she was “very emotional and
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`sensitive” and would probably have an emotional response to graphic pictures that may cloud her
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`judgment. Otis served on the jury, but Johnson was excused prior to the matter being submitted to
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`the jury.
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`The United States Supreme Court has held that, while the Constitution guarantees a
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`defendant the right to an impartial jury, the fact that a defendant is required to use a peremptory
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`challenge to cure a trial court’s error in denying a challenge for cause does not constitute a
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`constitutional violation. The Court stated:
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`We have long recognized that peremptory challenges are not of constitutional
`dimension. They are a means to achieve the end of an impartial jury. So long as the
`jury that sits is impartial, the fact that the defendant had to use a peremptory
`challenge to achieve that result does not mean the Sixth Amendment was violated.
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`Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (internal citations omitted) (explaining that “[a]ny claim
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`that the jury was not impartial . . . must focus . . . on the jurors who ultimately sat”). Indeed, “if
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`the defendant elects to cure [a trial court’s erroneous for-cause ruling] by exercising a peremptory
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`challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been
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`deprived of any . . . constitutional right.” United States v. Martinez-Salazar, 528 U.S. 304, 307
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`(2000); see also Rivera v. Illinois, 556 U.S. 148, 157 (2009) (“If a defendant is tried before a
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`qualified jury composed of individuals not challengeable for cause, the loss of a peremptory
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`challenge due to a state court’s good-faith error is not a matter of federal constitutional concern.”).
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`The Nevada Supreme Court reasonably concluded that the state district court did not err in
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`rejecting Arthur’s challenges for cause. No prospective juror Arthur challenged for cause was
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`seated on his jury, as Arthur did not lodge a challenge for cause against Otis or Johnson. Further,
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`after reasonably noting Johnson’s dismissal before the submission of the case to the jury, the
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`Nevada Supreme Court reasonably determined that Arthur failed to demonstrate how Otis’
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`participation made the jury impartial. In fact, although his father was murdered, Otis clearly
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`indicated that “notwithstanding [that] experience [he] could be a fair juror.” Because Arthur has
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`not shown that a biased or unqualified juror served on his jury, Arthur has not shown that his voir
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`dire did not meet constitutional requirements. See Skilling v. United States, 561 U.S. 358, 395
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`n.31 (2010). Thus, because the Nevada Supreme Court reasonably denied Arthur’s claim, Arthur
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`is denied federal habeas relief for Ground 1.
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`B.
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`Ground 2
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`In Ground 2, Arthur argues that his federal constitutional rights were violated when the
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`state district court admitted several pieces of inadmissible evidence, namely evidence that Arthur
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`had a history of domestic violence, a recording of a jailhouse call, the 911 call, and testimony that
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`Arthur had been previously incarcerated. These four pieces of evidence will be discussed
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`individually below.
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`“A habeas petitioner bears a heavy burden in showing a due process violation based on an
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`evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), as amended on reh’g,
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`421 F.3d 1154 (9th Cir. 2005). “[C]laims deal[ing] with admission of evidence” are “issue[s] of
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`state law.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); see also Lewis v. Jeffers,
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`497 U.S. 764 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”).
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`Therefore, the issue before the Court is “whether the state proceedings satisfied due process.”
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`Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). In order for the admission of
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`evidence to provide a basis for habeas relief, the evidence must have “rendered the trial
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`fundamentally unfair in violation of due process.” Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.
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`1995) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Not only must there be “no permissible
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`inference the jury may draw from the evidence,” but also the evidence must “be of such quality as
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`necessarily prevents a fair trial.” Jammal, 926 F.2d at 920 (emphasis in original) (citation omitted).
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`1.
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`Domestic Violence Evidence
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`Arthur argues that the admission of domestic violence evidence violated his due process
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`rights to a fair trial. Arthur also argues that the state district court failed to give a limiting
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`instruction informing the jury of the limited way in which it could use the domestic violence
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`evidence. In affirming Arthur’s conviction on direct appeal, the Nevada Supreme Court held:
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`Arthur argues that the district court improperly admitted evidence of prior bad acts
`without first conducting a hearing pursuant to Petrocelli v. State, 101 Nev. 46, 692
`P.2d 503 (1985), or providing a limiting jury instruction. The State counters that
`the evidence was admissible because it was offered to rebut a false impression of
`Arthur’s conduct and character created by defense counsel’s cross-examination of
`a witness.
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`“The trial court’s determination to admit or exclude evidence of prior bad acts is a
`decision within its discretionary authority and is to be given great deference.”
`Braunstein v. State, 118 Nev. 68, 72, 40 P.3d 413, 416 (2002). “It will not be
`reversed absent manifest error.” Id. In analyzing the propriety of admitting evidence
`of prior bad acts, the trial courts are instructed to follow the parameters of NRS
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`48.045(2) and weigh the probative value of the evidence against the risk of unfair
`prejudice. Id. at 72-73, 40 P.3d at 416-17. We have previously determined that
`when a defendant creates an impression of his character, the State may offer similar
`evidence as rebuttal so long as the evidence “squarely contradict[s] the . . . false
`impression” cause by the defendant’s evidence. Jezdik v. State, 121 Nev. 129, 140,
`110 P.3d 1058, 1065 (2005); see also U.S. v. Beltran-Rios, 878 F.2d 1208, 1212
`(9th Cir. 1989) (“We previously have allowed the Government to introduce
`otherwise excludable testimony when the defendant ‘opens the door’ by
`introducing potentially misleading testimony.”).
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`On direct examination of the witness, the State diligently avoided asking questions
`related to Arthur’s prior acts of domestic violence or his character. However, during
`cross-examination of the witness, Arthur’s counsel engaged in a series of questions
`that portrayed Arthur as acting childlike when he was intoxicated. Prior to the
`State’s rebuttal examination of the witness, the parties sought clarification from the
`district court as to the proper scope of the State’s rebuttal examination. In
`compliance with the district court’s guidelines, the State’s rebuttal evidence did not
`highlight specific instances of domestic violence or convictions but was limited and
`tailored to evidence rebutting the impression of Arthur’s conduct and character
`while intoxicated. As such, we conclude that the State’s rebuttal evidence squarely
`contradicted Arthur’s impression of his character and conduct and that the district
`court did not abuse its discretion by allowing the State to pursue this line of
`questioning.
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`The Nevada Supreme Court’s rejection of Arthur’s claim was neither contrary to nor an
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`unreasonable application of clearly established law as determined by the United States Supreme
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`Court.
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`At the trial, during Arthur’s trial counsel’s cross-examination, Taitano testified that Arthur
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`“would have to be sober, just to even come around [Andrade’s] house.” Taitano then explained
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`that she would sometimes have to treat Arthur like a child when he had been drinking. During the
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`State’s redirect examination of Taitano, the following colloquy occurred:
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`Q.
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`A.
`Q.
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`A.
`Q.
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`[Defense counsel] also asked you some questions about [Andrade] and other
`members of the family not liking to be around the Defendant when he was
`drunk. Do you remember those questions?
`Yes.
`Is one of the reasons that you didn’t - - he didn’t like the Defendant around
`when he was drunk because he would become violent with you?
`Yes.
`Sometimes when he was drunk would he put his hands on you?
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`Yes.
`A.
`Did that create problems in your relationship?
`Q.
`Yes.
`A.
`And [Andrade] was aware of these problems; was he not?
`Q.
`Yes.
`A.
`Q. Was that one of the reasons [Andrade] did not want the Defendant around
`if he was drinking?
`Yes.
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`A.
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`Arthur’s trial counsel objected to the State’s foregoing line of questioning, and a bench
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`conference was held. That bench conference was later put into the record, whereby the State
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`explained that it believed that Arthur’s trial counsel had “opened the door to domestic violence on
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`the part of Mr. Arthur towards Monica Taitano.” The state district court agreed, ruling that “the
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`State was going to be allowed to go into prior bad acts of Mr. Arthur towards Ms. Taitano,
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`specifically domestic violence and whether or not he laid his hands in the past on Ms. Taitano and
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`. . . that’s why he had been removed from the house.”
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`Regarding the admission of the domestic violence evidence, the Nevada Supreme Court,
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`the final arbiter of Nevada law, determined that Nevada caselaw provides that the State may offer
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`evidence rebutting a defendant’s evidence that creates an impression of his character—here using
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`the domestic violence evidence to rebut Arthur’s evidence that he acted childlike when intoxicated.
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`And Arthur has not demonstrated that the lack of a limiting instruction in this instance is a
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`constitutional issue. See Tavares v. State, 30 P.3d 1128, 1132 (Nev. 2001) (“[T]he failure to give
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`a limiting instruction on the use of uncharged bad act evidence is a nonconstitutional error.”).
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`Therefore, the issue before the Court is only whether the admission of this evidence was so
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`prejudicial that it rendered Arthur’s trial so fundamentally unfair as to violate due process. Estelle,
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`502 U.S. at 70; Jammal, 926 F.2d at 919-20 (“The issue for us, always, is whether the state
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`proceedings satisfied due process; the presence or absence of a state law violation is largely beside
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`the point.”).
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`Arthur urges the Court to review this claim de novo because the Nevada Supreme Court
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`only addressed whether the domestic violence evidence was admissible and failed to address his
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`constitutional arguments. The Nevada Supreme Court did not specifically address Arthur’s
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`constitutional arguments, but the Court must nonetheless presume that the Nevada Supreme Court
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`adjudicated and rejected that aspect of the claim on the merits. See Johnson v. Williams, 568 U.S.
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`289, 301 (2013). Even reviewed de novo, however, the claim falls short of warranting habeas relief.
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`Although Taitano’s testimony that Arthur would sometimes become violent and put his
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`hands on her when he was intoxicated may have been somewhat prejudicial to Arthur, it cannot be
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`determined that it rendered Arthur’s trial fundamentally unfair in violation of due process. Estelle,
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`502 U.S. at 70. Indeed, the State did not question Taitano about specific instances where Arthur
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`became violent with her, the State moved on from this line of questioning relatively quickly, and
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`Taitano diluted her own statement by also testifying that she had to treat Arthur like a child when
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`he was intoxicated. Further, “[u]nder AEDPA, even clearly erroneous admissions of evidence that
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`render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not
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`forbidden by ‘clearly established Federal law,’ as laid out by the Supreme Court.” Yarborough,
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`568 F.3d at 1101 (citing 28 U.S.C. § 2254(d)); see also Dowling v. United States, 493 U.S. 342,
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`352 (1990) (explaining that the Supreme Court has “defined the category of infractions that violate
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`‘fundamental fairness’ very narrowly”). And importantly, the Supreme Court “has not yet made a
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`ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process
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`violation sufficient to warrant issuance of the writ.” Id. Accordingly, Arthur is denied federal
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`habeas relief for Ground 2.1.
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`2.
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`Jailhouse Call
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`Arthur argues that the jailhouse telephone call between himself and Taitano was disclosed
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`very late thereby preventing him from changing his defense, had little purpose other than to inflame
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`the jury, allowed one witness to comment on his veracity, and contained other information that the
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`jury should never had learned about, such as his custodial status. In affirming Arthur’s conviction
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`on direct appeal, the Nevada Supreme Court held:
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`Arthur asserts that the district court committed error when it admitted a recorded
`jailhouse phone conversation between Arthur and a woman who eventually became
`a witness at trial because (1) the State did not produce this recording for discovery
`until the first day of trial, (2) comments made during the phone conversation were
`irrelevant or improper, (3) the phone conversation revealed Arthur’s custodial
`status, and (4) the conversation was improperly recorded. “We review a district
`court’s decision to admit or exclude evidence for an abuse of discretion.” Ramet v.
`State, 125 Nev. __, __, 209 P.3d 268, 269 (2009).
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`Late disclosure of recorded phone conversation
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`Arthur argues that the State violated its duty under NRS 174.235(1)(a) to timely
`disclose, during discovery, the recording of his jailhouse phone conversation
`wherein Arthur made statements that contradicted his self-defense theory at trial.
`Similarly, NRS 174.295(1) requires a party who subsequently discovers additional
`material that is subject to discovery to “promptly notify the other party or the other
`party’s attorney or the court of the existence of the additional material.” A district
`court, however, has broad discretion to establish a remedy under NRS 174.295.
`Evans v. State, 117 Nev. 609, 638, 28 P.3d 498, 518 (2001). The court