Glenn Darnell Dean v. DWIGHT NEVEN, Warden and ATTORNEY GENERAL OF THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENN DARNELL DEAN,
Petitioner-Appellant,
v.
DWIGHT NEVEN, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents-Appellees.
No. 15-15630
D.C. No.
2:12-cv-00323-JCM-GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted July 8, 2016**
San Francisco, California
Before: SILVERMAN and NGUYEN, Circuit Judges and ANELLO,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
FILED
JUL 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
Glenn Dean appeals from the district court’s order denying his habeas
petition after he was convicted of first degree kidnapping with a deadly weapon,
conspiracy to commit kidnapping, and robbery with a deadly weapon. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
1. The Nevada Supreme Court's decision to deny Dean’s insufficient-
evidence claim was a reasonable application of the law. Dean’s claim rests on
assertions that the victim’s testimony was unreliable. But it was for the jury, not
the federal court on habeas review, to assess the victim’s credibility. Because the
victim’s testimony was sufficient to establish each element of the charged crimes,
and a rational trier of fact could have credited that testimony, we uphold the jury’s
verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
2. The Nevada Supreme Court reasonably denied Dean’s ineffective
assistance of counsel claim alleging that his counsel failed to object to the first
degree kidnapping jury instructions. Substantial evidence supported Dean’s
conviction on the theory that he kidnapped the victim with the purpose of killing
him. Therefore, he cannot show that the instructions on the robbery theory, even if
they were extraneous, “had a substantial or injurious effect or influence in
determining the jury’s verdict.” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008).

-- 2 of 5 --

3
3. Similarly, the Nevada Supreme Court reasonably denied Dean’s
ineffective assistance of counsel claim alleging that his counsel failed to object to
hearsay testimony. Dean argues that his counsel should have objected to testimony
that a tuxedo shop attendant expressed concern about the victim’s wounds. But he
fails to show any prejudice from this failure to object. There was ample evidence
that the victim was bleeding, including testimony from the victim, a police officer
who interviewed him, and the mother of the victim’s girlfriend. Given this
evidence, Dean cannot show a reasonable probability that the hearsay testimony
affected the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 694
(1984).
4. The Nevada Supreme Court also reasonably denied Dean’s claim that the
trial court sentenced him based on a misunderstanding of his criminal record. Dean
argues that the trial court was misled by a mistake in the presentence report
(“PSR”) saying that he had six prior incarcerations, when in fact he only had one
prior incarceration resulting from concurrent sentences on his prior convictions.
Dean fails to show that the PSR was erroneous or, even if it was, that the court
relied on that error. C.f. Townsend v. Burke, 334 U.S. 736, 741 (1948) (holding that
a defendant’s due process rights may be violated when he shows that the trial

-- 3 of 5 --

4
court’s sentence rests “on a foundation [that is] extensively and materially false").
While the PSR said in a summary section that he had six felony convictions and six
incarcerations, it also listed in detail each conviction and sentence, showing that
the sentences were concurrent. Moreover, the record shows that the trial court was
influenced not by the number of discrete terms Dean spent in prison, but rather by
the number of felony convictions on his record. The Nevada Supreme Court’s
decision to deny this claim was therefore a reasonable application of the law.
5. We decline to expand the certificate of appealability to consider the
whether the district court erred in concluding that Dean failed to exhaust his
ineffective assistance of counsel claim concerning his trial counsel’s failure to
investigate his shoulder injury. When, as here, the district court denies a habeas
petition on procedural grounds, a COA should be issued only if reasonable jurists
would find it debatable both “whether the petition states a valid claim of the denial
of a constitutional right” and “whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The petition does
not state a valid claim of the denial of a constitutional right.
Dean asserts that his trial counsel failed to subpoena medical records
showing that he had a dislocated shoulder at the time of the kidnapping. But Dean

-- 4 of 5 --

5
does not adequately demonstrate prejudice from his counsel's performance. The
medical records alone would not have refuted the victim's testimony that he
racked a gun during the kidnapping. They would have shown only that he had an
injury—a fact that corroborates the victim’s testimony that he wore an arm sling.
Absent other credible evidence that Dean’s injuries prevented him from racking a
gun—evidence which Dean has not adduced—there is no reasonable probability
these medical records would have changed the outcome of the trial.
AFFIRMED.

-- 5 of 5 --