`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 1 of 25
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`JONATHAN JOE SKENANDORE,
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`Petitioner,
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`Case No. 3:21-cv-00330-ART-CSD
`ORDER
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`v.
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`JEREMY BEAN1, et al.,
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`Respondents.
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`Petitioner Jonathan Joe Skenandore filed a counseled first amended
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`petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 25. This
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`matter is before the Court for adjudication of the merits of the first amended
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`petition, which alleges that his guilty plea was involuntary because (1) he did not
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`understand all the elements of the crime; (2) his counsel rendered ineffective
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`assistance for providing advice based on a misunderstanding of first-degree
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`murder; and (3) his counsel rendered ineffective assistance for advising
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`Skenandore that he could not withdraw from the conspiracy. For the reasons
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`discussed below, the Court grants the petition on ground 1.
`BACKGROUND2
`I.
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`1 According to the state corrections department’s inmate locator page,
`Skenandore is incarcerated at High Desert State Prison (“HDSP”). Jeremy Bean
`is the current warden of that facility. At the end of this order, the Court directs
`the Clerk to substitute Jeremy Bean as respondent for Respondent Perry Russell.
`See Fed. R. Civ. P. 25(d).
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` The Court summarizes the relevant state court record for consideration of the
`issues. The Court makes no credibility findings or factual findings regarding the
`truth or falsity of evidence or statements of fact in the state court. The Court
`summarizes the same solely as background to the issues presented in this case.
`No assertion of fact made in describing statements, testimony, or other evidence
`in the state court, constitutes a finding by the Court unless expressly stated.
`Failure to mention a category or piece of evidence does not signify it was
`overlooked in considering the claims.
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 2 of 25
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`A. Factual Background
`Skenandore pled guilty to second-degree murder based on the shooting of
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`Grant Watkins. During the evening of January 10, 2016, an individual named
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`Jesus ((“Jesus”) also known as “Cheech”) called Watkins, to purchase three
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`ounces of marijuana from Watkins. ECF No. 34-2 at 78-79. Watkins was with a
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`friend, Jonni Escobar (“Escobar”), who agreed to drive Watkins to conduct the
`transaction. Id. at 81.
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`A group of individuals were at the apartment of Reed Skenandore (“Reed”),
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`Skenandore’s brother. Brandon McGee
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`(“Brandon”), Keenan Blackmore
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`(“Keenan”), Jacob Huttman (“Jacob”), and Jacob’s 17-year-old brother, were at
`Reed’s apartment. Id. at 314-18. According to Brandon, Skenandore received a
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`phone call and when he hung up, he informed the group that he had a way to
`“come up” off three ounces of marijuana. Id. at 319-20. After that discussion,
`Jesus arrived at the apartment and discussed a plan for the robbery. Id. at 322-
`23. The group, except for Brandon, then left Reed’s apartment. Id. at 333-34.
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`Keenan, Reed, Skenandore, Jacob, and Jacob’s juvenile brother got into
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`Jacob’s Toyota Corolla to drive to a park to meet Watkins. ECF No. 34-4 at 268-
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`69. According to Keenan, Jacob was driving, Reed was in the front passenger
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`seat, and Keenan, Skenandore, and Jacob’s juvenile brother were in the back
`seat. Id. at 271. Jesus and another individual, Alan Garcia (“Alan”), were in a
`separate car, and met the Toyota near the park. Id. at 269-70.
`Jesus exited the car he was in with Alan, and then entered the Toyota. Id.
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`at 270. Because there were now six people in the car, Keenan and Jacob’s juvenile
`brother exited the Toyota. Id. at 272. The Toyota proceeds to turn around the
`corner, but stops, and Skenandore exits the Toyota.3 Id. at 273. Skenandore told
`Keenan that he exited the car because Watkins might recognize him. Id. at 274.
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`3 When Skenandore exited the Toyota, he was about 200 yards away from where
`the shooting took place. ECF No. 32-44 at 47.
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 3 of 25
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`Skenandore left his .40 caliber firearm in the car with Jesus. Id. at 277.
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`Watkins and Escobar were in their vehicle waiting at the park. ECF No. 34-
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`2 at 87. When the other car arrived at the park, they flashed their lights at
`Watkins and Escobar to signal their arrival. Id. at 92. Watkins exited the vehicle
`and walked towards the other vehicle. Id. When Watkins was in between both
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`vehicles, the passenger and driver jumped out of the other vehicle, and Escobar
`heard a gunshot, and saw Watkins fall to the ground. Id. Escobar observed the
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`passenger of the other vehicle grab the marijuana from Watkins’s sweater pocket
`after Watkins fell to the ground. Id. at 93.
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`Escobar exited his vehicle and charged towards the driver of the other
`vehicle with a knife that Watkins had given him. Id. at 94. The driver yelled at
`Escobar and said, “back up, stay back.” Id. Escobar continued to walk towards
`him, and then the driver pointed a gun at Escobar. Id. Escobar fell to the ground
`and heard two gunshots. Id. The driver and the passenger returned to their
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`vehicle, made a U-turn, and stopped near mailboxes to pick something up off the
`ground. Id. at 100. When the shooter’s vehicle left, Escobar maneuvered his car
`closer to Watkins, pulled Watkins into his car, and drove to the hospital. Id. at
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`102, 105. Watkins died from the gunshot wound. ECF No. 34-3 at 142.
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`Skenandore, Keenan, and Jacob’s juvenile brother were walking towards
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`the park and began running towards the park when they heard gunshots. ECF
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`No. 34-4 at 277-79. Keenan observed a dark figure run toward another dark
`figure. Id. at 279. Keenan observed a second shooter pop out of the driver’s side
`of the car and fire rounds directly in the air. Id. The shooter returned to his car,
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`made a U-turn, and Keenan, Skenandore, and Jacob’s juvenile brother hopped
`into the backseat. Id. at 282. Jesus was still in the backseat, Jacob was driving,
`and Reed was in the front passenger seat. Id. at 284.
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`As they drove away, Reed called Brandon and told him to meet them at
`Jacob’s house. Id. at 286. During the conversation, Reed stated that he shot
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 4 of 25
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`somebody. Id. While at Jacob’s house, Brandon observed Skenandore cleaning
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`Reed’s gun with bleach. ECF No. 34-2 at 346.
`B.
`Procedural Background
`A second amended complaint charged Skenandore with murder with use
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`of a deadly weapon, robbery with use of a deadly weapon, destruction of evidence,
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`and a gross misdemeanor. ECF No. 31-12 at 3. Following a preliminary hearing,
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`the justice court bound over the charges to the district court. ECF No. 31-16.
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`In March of 2017, Skenandore entered into a guilty plea agreement where
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`he pled guilty to second-degree murder and conspiracy to commit robbery as
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`alleged in a second amended information, and in exchange the State agreed to
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`dismiss or otherwise not pursue any other charges. ECF Nos. 31-49, 31-50. The
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`state court sentenced Skenandore to 10 to 25 years for second-degree murder
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`and a concurrent term of 12 to 48 months for conspiracy to commit robbery. ECF
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`No. 32-4. Skenandore did not file a direct appeal.
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`In April 2018, Skenandore filed a state postconviction habeas petition. ECF
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`No. 32-10. Following an evidentiary hearing, the state court denied his state
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`postconviction habeas petition. ECF Nos. 32-44, 33-7. The Nevada Court of
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`Appeals affirmed the denial of relief. ECF No. 33-28. On August 2, 2021,
`Skenandore initiated this federal habeas corpus proceeding pro se. ECF No. 1.
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`Following appointment of counsel, Skenandore filed his first amended petition.
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`ECF Nos. 15, 25.
`GOVERNING STANDARD FOR REVIEW
`II.
`28 U.S.C. § 2254(d) sets forth the standard of review generally applicable
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`in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act
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`(“AEDPA”):
`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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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 5 of 25
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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
`(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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`28 U.S.C. § 2254(d). A state court decision is contrary to clearly established
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`Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state
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`court applies a rule that contradicts the governing law set forth in [Supreme
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`Court] cases” or “if the state court confronts a set of facts that are materially
`indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade,
`538 U.S. 63, 73 (2003) (first quoting Williams v. Taylor, 529 U.S. 362, 405-06
`(2000), and then citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court
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`decision is an unreasonable application of clearly established Supreme Court
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`precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court identifies
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`the correct governing legal principle from [the Supreme] Court’s decisions but
`unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75.
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`The Supreme Court has instructed that “[a] state court’s determination that
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`a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
`could disagree’ on the correctness of the state court’s decision.” Harrington v.
`Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652,
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`664 (2004)).
`III. DISCUSSION
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`A. Ground 1—validity of guilty plea re: understanding the elements
`of the crime and making a factual statement constituting an
`admission to the crime.
`In ground 1, Skenandore alleges that he entered a plea that was not
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`voluntary in violation of his due process rights under the Fifth and Fourteenth
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`Amendments. ECF No. 25 at 5-8. He asserts that he did not understand all the
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`elements of the crime and he did not make a factual statement constituting an
`admission of second-degree murder. Id. at 6-7. Under Nevada law, to be convicted
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 6 of 25
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`of second-degree murder, a defendant must harbor, either express or implied,
`malice aforethought. See McCurdy v. State, 809 P.2d 1265, 1266 (Nev. 1991).
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`Because there was no allegation that Skenandore acted with express malice, he
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`had to understand that he had to have acted with implied malice and that the
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`factual admission had to support a finding of implied malice.4 ECF No. 25 at 7.
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`Skenandore alleges that his factual statement at the guilty plea canvass
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`demonstrates that he lacked understanding as to the implied malice element
`because he did not provide sufficient facts to establish implied malice. Id. The
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`second amended complaint did not plead that Skenandore acted with implied
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`malice and did not plead any facts consistent with implied malice.
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`1.
`Additional Background Information
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`a. Guilty Plea
`The second amended information, which listed Reed, Jesus, and Jacob
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`Huttman as co-defendants, alleged:
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`That the Defendant . . . along with [Reed, Jesus, and Jacob] . . . did
`willfully and unlawfully kill Grant Watkins, a human being, while in
`the perpetration or attempted perpetration of a ROBBERY, as defined
`by NRS 200.380, in the manner following: the Defendants set up a
`deal to purchase marijuana from Grant Watkins and induced Grant
`Watkins to meet at a location chosen by the Defendants, the said
`Defendants in fact planning to steal and rob marijuana from Grant
`Watkins, and in the course of the robbery, the Defendants acted with
`knowledge of the facts and in concert with other defendants who
`caused the death of Grant Watkins by brandishing and/or
`discharging a firearm at Grant Watkins, causing a mortal wound to
`Grant Watkins, after which the Defendants did take a green leafy
`substance believed to be marijuana from the person or in the
`presence of Grant Watkins. . .
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`ECF No. 31-48 at 3.
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`In the guilty plea memorandum, Skenandore affirmed that he discussed
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`the elements of the original charge against him with his attorney and that he
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`4 Under Nevada law, implied malice is established “when no considerable
`provocation appears, or when all the circumstances of the killing show an
`abandoned and malignant heart.” NRS § 200.020(2).
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 7 of 25
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`understood the nature of the charge against him. ECF No. 31-49 at 5. He affirmed
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`that “all of the foregoing elements, consequences, rights, and waiver of rights
`have been thoroughly explained to me by my attorney.” Id. Attached to the guilty
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`plea memorandum is a certificate of Skenandore’s counsel, in which counsel
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`stated that he fully explained to Skenandore the allegations contained in the
`charge to which the guilty plea is being entered. Id. at 7.
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`At the plea canvass, Skenandore affirmed that he read the guilty plea
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`memorandum before he signed it. ECF No. 31-50 at 9. He also affirmed that he
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`understood the memorandum and that his counsel answered any questions he
`had before signing the memorandum. Id. The state court read the allegations to
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`the charge in the second amended information and Skenandore indicated that he
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`understood the charge. ECF No. 31-50 at 6. The state court instructed
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`Skenandore to state what he did, and after his counsel asked the state court for
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`a moment, Skenandore responded, “I was involved with some people who went to
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`go rob some guy, Grant, for marijuana, and he ended up getting shot that night.”
`Id. at 14. Skenandore admitted that he agreed with those other people to take
`personal property from Watkins by means of force or violence or fear of injury. Id.
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`Skenandore was nineteen at the time of the guilty plea canvass and had
`completed his GED. Id. at 14-15.
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`Postconviction Evidentiary Hearing
`b.
`At the postconviction evidentiary hearing, Skenandore testified that he pled
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`guilty on the advice of counsel. ECF No. 32-44 at 118. He further testified that
`he was nineteen at the time that he pled guilty. Id. at 119. Skenandore did not
`believe he was guilty of murder at the time. Id. Skenandore further testified that
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`his counsel informed him that if there was a conspiracy that he would be liable
`for anything that happened, even if Skenandore did not pull the trigger. Id. at
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`120. Skenandore thought that somebody was going to come to the window, give
`Jesus the marijuana, and that they were going to drive off. Id. at 121. Skenandore
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 8 of 25
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`testified that he did not know Watkins was involved at first, but once he learned
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`Watkins was involved, he told Jesus he couldn’t do it because he knew Watkins
`and got out of the car. Id. at 123. Jesus asked Skenandore to leave his gun with
`him. Id. at 124.
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`Skenandore testified that while discussing the decision to plead guilty, his
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`counsel told him about implied malice, but “he never really explained the full
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`extent of what it meant.” ECF No. 32-44 at 145. Skenandore further testified that
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`he did not understand implied malice when he pled guilty to second-degree
`murder. Id.
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`Skenandore’s counsel, Richard Davies
`(“Davies”), testified at the
`postconviction evidentiary hearing. Id. at 7. Davies testified that prior to the
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`change of plea hearing, he reviewed the criminal information with Skenandore.
`Id. at 73. He testified that he reviewed the plea memorandum with Skenandore
`and talked about what Skenandore would be pleading to. Id.
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`2. Standard for a Valid Guilty Plea
`The federal constitutional guarantee of due process requires that a guilty
`plea be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238,
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`242 (1969). “The longstanding test for determining the validity of a guilty plea is
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`‘whether the plea represents a voluntary and intelligent choice among the
`alternative courses of action open to the defendant.’” Hill v. Lockhart, 474 U.S.
`52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). Where a
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`defendant pleads guilty to a crime without having been informed of the crime’s
`elements, this standard is not met, and the plea is invalid. Bradshaw v. Stumpf,
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`545 U.S. 175, 183 (2005). The constitutional prerequisites of a valid plea may be
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`satisfied where the record accurately reflects the nature of the charge, and the
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`elements of the crime were explained to the defendant by his own, competent
`counsel. Id. But even where the record does not expressly show that the trial
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`judge or defense counsel explained the elements of the charges to the defendant,
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`there is a presumption that “defense counsel routinely explain the nature of the
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`offense in sufficient detail to give the accused notice of what he is being asked to
`admit.” Henderson v. Morgan, 426 U.S. 637, 647 (1976).
`In Henderson, the Supreme Court vacated a guilty plea to a charge of
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`second-degree murder, finding that the petitioner did not receive adequate notice
`of the intent element of the crime. 426 U.S. at 637. The petitioner in Henderson
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`had originally been indicted on a charge of first-degree murder but pleaded guilty
`to second-degree murder. Id. at 638. As second-degree murder was never formally
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`charged, the petitioner did not receive notice that second-degree murder required
`proof of intent. Id. at 645. The guilty plea was found defective because “the trial
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`judge found as a fact that the element of intent was not explained to [the
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`petitioner]” and “[the petitioner’s] unusually low mental capacity provides a
`reasonable explanation for counsel’s oversight.” Id. at 647.
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`State Court Decision
`3.
`The Nevada Court of Appeals held:
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`Skenandore also argued his plea was unknowingly entered because
`he did not understand the implied malice element of second-degree
`murder. “This court will not invalidate a plea as long as the totality
`of the circumstances, as shown by the record, demonstrates that the
`plea was knowingly and voluntarily made and that the defendant
`understood the nature of the offense and the consequences of the
`plea.” State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448 (2000).
`In the case of felony murder, “[t]he felonious intent involved in the
`underlying felony may be transferred to supply the malice necessary
`to characterize the death a murder.” Collman v. State, 116 Nev. 687,
`713, 7 P.3d 426, 442 (2000). In the second amended criminal
`information, the State alleged Skenandore had the intent to commit
`robbery and the victim was killed during the commission of the
`robbery. At the plea canvass, the district court reviewed the
`allegations contained within
`the second amended criminal
`information, including Skenandore’s intent to commit robbery. In
`response, Skenandore acknowledged that he understood the charge
`and that he committed the acts described in the second amended
`information. Given Skenandore’s admission that he had the
`felonious intent to commit robbery, he thus also acknowledged he
`acted with malice necessary to characterize the victim’s death a
`murder. In light of Skenandore’s acknowledgments at the plea
`canvass, the totality of the circumstances demonstrate that his guilty
`plea was knowingly and voluntarily entered, and that he understood
`the nature of the offense and the consequences of his plea. Therefore,
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`the district court did not err by denying this claim.
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`ECF No. 33-28 at 5-6.
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`4. De Novo Review
`Skenandore argues the Court should review Ground 1 de novo because the
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`Nevada Court of Appeals’ decision was unreasonable. He asserts that although
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`the first-degree felony murder statute allows for implied malice based on the
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`intent to commit an underlying and qualifying felony, second-degree felony
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`murder requires an additional factual element to establish either express or
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`implied malice. ECF No. 41 at 19. The Court finds that the Nevada Court of
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`Appeals’ determination is unreasonable because an admission that Skenandore
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`had felonious intent to commit robbery does not demonstrate that he understood
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`the implied malice element of second-degree murder or establish a factual basis
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`for the plea to that charge. Therefore, the Nevada Court of Appeals’ finding that
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`Skenandore’s “guilty plea was knowingly and voluntarily entered, and that he
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`understood the nature of the offense,” was based on an unreasonable
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`determination of the facts that is established by clear and convincing evidence in
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`the state-court record. 28 U.S.C. § 2254(d)(2); (e)(1). As such, the Court will review
`Ground 1 de novo. See Panetti v. Quarterman, 551 U.S. 930, 948 (2007) (“As a
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`result of [the state court’s] error, our review of petitioner’s underlying . . . claim
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`is unencumbered by the deference AEDPA normally requires”).
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`Conclusion
`5.
`Pursuant to Nevada law, to be guilty of second-degree murder Skenandore
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`must have caused the death of another human being while having “malice
`aforethought, either express or implied.” NRS § 200.010; See also McCurdy, 809
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`P.2d at 1266. “Robbery is the unlawful taking of personal property from the
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`person of another, or in the person’s presence, against his or her will, by means
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`of force or violence or fear of injury, immediate or future, to his or her person…at
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`the time of the robbery.” NRS § 200.380.
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 11 of 25
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`Skenandore’s conviction for conspiracy to commit robbery could not supply
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`the malice required for his plea to second-degree murder under a second-degree
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`felony murder theory of liability unless he admitted that he committed an
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`inherently dangerous (and non-assaultive) predicate felony and there is an
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`immediate and direct causal relationship between his acts and the victim’s death.
`See Ramirez v. State, 235 P.3d 619, 622 (Nev. 2010) (explaining these elements
`are required for an instruction on second-degree felony murder). See also Rose v.
`State, 255 P.3d 291, 295 (Nev. 2011) (explaining that for second-degree felony
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`murder, two elements must be satisfied: (1) the predicate felony must be
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`inherently dangerous, where death or injury is a directly foreseeable consequence
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`of the illegal act, and (2) there must be an immediate and direct causal
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`relationship—without the intervention of some other source or agency—between
`the actions of the defendant and the victim's death); See also Labastida v. State,
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`986 P.2d 443, 448-49 (Nev. 1999).
`The Nevada Supreme Court in Rose refined Ramirez’s requirements for
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`second-degree felony murder by adopting a merger doctrine, that provides that
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`an assaultive felony merges with the murder and cannot provide a basis for a
`conviction for second-degree felony murder. See Rose, 255 P.3d at 295-98. Rose
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`also held that the determination whether a crime is assaultive in nature is not a
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`legal determination based on the definition of the predicate felony; rather, the
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`determination whether the predicate felony is assaultive is a fact determination
`that is based “on the manner in which the felony was committed.” Id. 297-98.5
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`The Court acknowledges that Skenandore affirmed that he read the guilty
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`plea memorandum. The guilty plea memorandum provides that Skenandore
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`5 Alternatively, implied malice to support Skenandore’s conviction for second-
`degree murder required the State allege and Skenandore admit he acted with
`extreme recklessness regarding the risk to and conscious disregard for human
`life. See Collman v. State, 116 Nev. 687, 715-18 & n.13, 7 P.3d 426, 444-45 &
`n.13 (2000).
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 12 of 25
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`discussed the elements of “the original charge” against him with his attorney and
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`that he understands the nature of the charge against him. In addition, there is a
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`certificate executed by Skenandore’s counsel attached to the guilty plea
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`memorandum providing that counsel fully explained the allegations contained in
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`the charge to which Skenandore pled guilty. Skenandore testified that his counsel
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`told him about implied malice, even though “he never really explained the full
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`extent of what it meant.” ECF No. 32-44 at 145.
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`At the time of his plea canvass, however, Skenandore was only nineteen
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`years old with a GED. Skenandore did not admit to having a specific intent to kill
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`or that he killed the victim. In addition, the second amended information, which
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`the state court read at the plea canvass, did not plead that Skenandore acted
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`with implied malice. Further, neither the Court’s questioning nor Skenandore’s
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`statement of his actions at the plea canvass establishes that he understood the
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`element of implied malice. Skenandore’s statement at the plea canvass that “[he]
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`was involved with some people who went to go rob some guy, Grant, for
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`marijuana, and [Grant] ended up getting shot that night,” provides a factual basis
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`for felony murder, but not implied malice to support second-degree felony
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`murder. These factors as well as the fact that Skenandore testified at the
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`postconviction evidentiary hearing that he did not have an understanding of
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`implied malice at the time that he pled guilty to second-degree murder supports
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`the conclusion that Skenandore did not receive adequate notice of the offense to
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`which he pled guilty. Accordingly, based on the record and considering the
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`totality of the circumstances, the Court finds that his plea was involuntary, and
`the judgment of conviction was entered without due process of law. Boykin, 395
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`U.S. at 242. Skenandore is entitled to federal habeas relief for ground 1.
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`B. Ground 2—validity of guilty plea re: counsel’s advice was based
`on a misunderstanding of first-degree murder.
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`In ground 2, Skenandore alleges that his guilty plea was not voluntary
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`because counsel rendered ineffective assistance for advising Skenandore to plead
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`guilty based on a misunderstanding of first-degree murder. ECF No. 35 at 8.
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`Skenandore asserts that his counsel’s primary motivation for advising him to
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`plead guilty was because his case was death penalty eligible, even though that
`was no longer a substantial risk when Skenandore pled guilty. Id. at 15-16.
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`Skenandore further asserts counsel’s advice was ineffective because Skenandore
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`did not participate in the robbery, so he could not be vicariously liable for murder,
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`a specific intent crime, and, he had planned to commit a grab-and-go, i.e., a
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`larceny, rather than robbery, and larceny is not a predicate felony for first-degree
`felony murder. Id. at 16-17.
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`1.
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`Additional Background Information
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`a.
`Preliminary Hearing Testimony
`Brandon testified at the preliminary hearing that while he was at Reed’s
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`apartment, Skenandore received a phone call and when he hung up, he informed
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`the group that he had a way to “come up” off three ounces of marijuana. ECF No.
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`34-2 at 320. He admitted that the phrase “come up off of” doesn’t necessarily
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`mean to rob someone but could also mean getting a good deal. ECF No. 34-3 at
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`121-22. He testified that he had the impression that they were going to rob
`someone that night, in that they were going to look at the weed and run off. Id.
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`Brandon further testified that Reed grabbed a ski mask, and that
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`Skenandore and Jake may have also had masks. ECF No. 34-2 at 329-30. He did
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`not see anyone with weapons, but knew that Reed, Skenandore, and Jake
`generally carried guns tucked in their pants. Id. at 330-31. Brandon stayed in
`the apartment while everyone else left. Id. 334, 341. After hearing gunshots,
`Brandon called Reed, who said that he shot somebody. Id. at 342. Keenan
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`testified at the preliminary hearing that while he was at Reed’s apartment, Jesus
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`arrived at the apartment and mentioned to the group that he had a “quick come
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`up.” ECF No. 34-4 at 261. Keenan described a “come up” as grabbing and taking
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`Case 3:21-cv-00330-ART-CSD Document 56 Filed 03/28/25 Page 14 of 25
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`something. Id. Keenan reiterated that Jesus stated that he had a “come up,” and
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`not Skenandore. ECF No. 34-5 at 21-22. The group left the apartment to go to
`the park and Keenan testified that no one wore a ski mask or bandana. Id. at
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`121-22. Skenandore told Keenan that he exited the car near the park because
`Watkins might recognize him. ECF No. 34-4 at 274.
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`b.
`Postconviction Evidentiary Hearing Testimony
` Davies testified that he advised Skenandore to plead guilty to second
`degree murder because Skenandore “was originally looking at [a] potential death
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`penalty involved in a conspiracy or involving a felony murder case.” ECF No. 32-
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`44 at 9. He acknowledged that when the 30-day deadline from the filing of the
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`information to file notice of intent to seek death penalty passed that it was clear
`that the death penalty was “off the table.” Id. at 10.
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`He further testified that he advised Skenandore to plead guilty because he
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`was very likely going to be found guilty of felony murder based on the theory that
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`Skenandore joined a conspiracy to commit a robbery, which would carry a
`potential of at least 40 years in prison for the use of a weapon. Id. at 11. He
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`testified that Skenandore acted in reckless disregard for the life of Watkins by
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`handing a firearm to a passenger in the vehicle when they were going to rob
`Watkins. Id. at 15. Davies testified that he considered the defense that
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`Skenandore committed conspiracy to commit larceny or a “grab and go”, rather
`than a robbery. Id. at 20. He believed that there was intent to use force to take
`and that amounted to a robbery. Id. at 24.
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`Skenandore testified that Davies never discussed the concept of larceny
`from a person not amounting to robbery with him. Id. at 123. He would not have
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`pled guilty if he had known that a larceny not amounting to robbery is not a
`predicate felony for first-degree murder. Id.
`2. Standard for Ineffective