Todd M. Honeycutt v. BILL DONAT, Warden and ATTORNEY GENERAL OF THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD M. HONEYCUTT,
Petitioner - Appellant,
v.
BILL DONAT, Warden and ATTORNEY
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
No. 09-16758
D.C. No. 2:06-cv-00634-RLH-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted April 17, 2013
San Francisco, California
Before: NOONAN, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.
Petitioner Todd M. Honeycutt appeals the district court’s denial of his
petition for a writ of habeas corpus (the “Petition”). We affirm in part and reverse
in part.
FILED
AUG 01 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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I
The Nevada Supreme Court reasonably applied clearly established federal
law when it denied Honeycutt’s prosecutorial misconduct claims. “A prosecutor’s
actions constitute misconduct if they ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Wood v. Ryan, 693 F.3d
1104, 1113 (9th Cir. 2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181
(1986)). “On habeas review, constitutional errors of the ‘trial type,’ including
prosecutorial misconduct, warrant relief only if they ‘had substantial and injurious
effect or influence in determining the jury’s verdict.” Id. (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637–38 (1993)).
In this case, the Nevada Supreme Court reasonably concluded that the
choking incident constituted misconduct, but did not prejudice Honeycutt. The
relevant factors under Brecht demonstrate that the choking incident did not have a
“substantial and injurious effect” on the outcome of Honeycutt’s case. The record
reveals strong evidence of Honeycutt’s guilt. See Davis v. Woodford, 384 F.3d
628, 644 (9th Cir. 2003) (“This [is] not a case in which there was . . . ‘a strong
likelihood that the effect of the [misconduct] would be devastating to the
defendant.’”). The choking incident was a brief episode and not part of a pattern of
ongoing misconduct. Honeycutt’s testimony (which the incident interrupted) was
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not critical as Honeycutt claims—a fact underscored by Honeycutt’s last minute
decision to testify against counsel’s advice. Further, the trial court sustained
defense counsel’s objection to the incident. See Sassounian v. Roe, 230 F.3d 1097,
1106 (9th Cir. 2000). Thus, we cannot say that the Nevada Supreme Court
unreasonably concluded that the choking incident was harmless.
The Nevada Supreme Court did not unreasonably apply Darden when it
concluded that none of the prosecutor’s other actions (individually or collectively)
amounted to misconduct. We note that defense counsel failed to object to most of
the other actions Honeycutt now claims were misconduct. Accordingly, the
Nevada Supreme Court reasonably denied Honeycutt’s prosecutorial misconduct
claims.
II
Even assuming that the trial court erred when it failed to instruct the jury on
Honeycutt’s alleged reasonable belief of the victim’s consent, “[a] jury instruction
that erroneously. . . omits an element of the offense is a non-structural
constitutional error subject to harmless error review.” United States v. Anchrum,
590 F.3d 795, 799 (9th Cir. 2009). “Under Brecht, an instructional error is
prejudicial and habeas relief is appropriate only if, after reviewing the record as a
whole, we conclude that there was a substantial and injurious effect or influence on
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the verdict, or if we are ‘left in grave doubt’ as to whether there was such an
effect.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
Here, Honeycutt failed to show that the jury would have accepted
Honeycutt’s alleged belief of the victim’s consent, given the jury’s rejection of
Honeycutt’s version of events and the lack of other supporting evidence. Thus, we
cannot say that any alleged failure to instruct leaves us in “grave doubt” as to the
propriety of Honeycutt’s conviction. Accordingly, any alleged violation was
harmless under Brecht.
III
The Nevada Supreme Court reasonably denied Honeycutt’s ineffective
assistance of counsel claim based on counsel’s failure to proffer the correct belief
of consent instruction. The Nevada Supreme Court invoked the “complete
instruction” requirement for the first time in denying Honeycutt relief on direct
appeal. See Honeycutt v. State, 56 P.3d 362, 368–69 (Nev. 2002). The Nevada
Supreme Court overruled the requirement just three years later in Carter v. State,
121 P.3d 592, 595–96 (Nev. 2005). Honeycutt’s counsel could not have known
that failure to proffer the “complete instruction” would prompt the trial court to
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reject it. Thus, Honeycutt cannot show that counsel’s performance was deficient
under Strickland v. Washington, 466 U.S. 668, 687 (1984).
IV
The Nevada Supreme Court reasonably applied clearly established law when
it denied Honeycutt’s claim that joinder of his charges for trial violated his due
process rights and right against self incrimination. Honeycutt cites no Supreme
Court case to support his theory that joinder of the charges violated his right
against self-incrimination. While he cites cases for the general rule that a
defendant cannot be compelled to testify against himself, he fails to demonstrate
that the trial court compelled him to testify. Indeed, Honeycutt chose to testify
over advice of counsel. Thus, the Nevada Supreme Court did not unreasonably
apply the Fifth Amendment’s general prohibition against self-incrimination.
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (“[E]valuating whether a rule
application was unreasonable requires considering the rule’s specificity. The more
general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.” (alteration in original) (internal quotation marks omitted)).
Similarly, Honeycutt fails to show that joinder rendered his trial
“fundamentally unfair,” thereby violating his due process rights. See Fields v.
Woodford, 309 F.3d 1095, 1110 (9th Cir. 2002), amended by 315 F.3d 1062 (9th
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Cir. 2002). Evidence of the sexual assault and kidnapping was cross-admissible
with the evidence of solicitation. See id. Further, the State’s evidence on both sets
of charges was strong, foreclosing any argument that evidence of the stronger
charge would taint the jury’s view of the weaker. See id. Thus, the Nevada
Supreme Court reasonably denied Honeycutt’s joinder-related claims.
V
The Nevada Supreme Court reasonably applied Strickland when it rejected
Honeycutt’s ineffective assistance of trial counsel claim arising from counsel’s
alleged failure to introduce exculpatory evidence. To overcome the presumption of
adequate assistance, “a defendant must show that counsel failed to act ‘reasonably
considering all the circumstances.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1403
(2011) (alteration omitted). In addition, the defendant must “prove prejudice,”
meaning that he must show a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
Here, counsel’s failure to introduce allegedly exculpatory letters did not
constitute deficient performance under Strickland. While Honeycutt claims that
there “was no strategic reason for not introducing these letters,” the record reveals
that counsel could have reasonably decided not to introduce the letters. Honeycutt
intended to invoke the Fifth Amendment and to refuse to testify regarding the
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solicitation charge. To preserve this right, counsel even advised defendant to
refrain from testifying on the sexual assault and kidnapping charges. Had counsel
introduced the letters at trial, it would have opened Honeycutt up to cross
examination on their content, defeating counsel’s effort to avoid Honeycutt
testifying. Because Honeycutt cannot show that counsel failed to act reasonably
given the circumstances, the Nevada Supreme Court reasonably denied his
Strickland claim.1
VI
We reject Honeycutt’s claim of cumulative error. Honeycutt fails to show
that, taken together, the alleged errors “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” See Parle v. Runnels, 505
F.3d 922, 927 (9th Cir. 2007) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)).
VII
The Nevada Supreme Court unreasonably denied Honeycutt’s Massiah v.
United States, 377 U.S. 201 (1964), claim. The Sixth Amendment did not bar the
State’s investigation of the solicitation charge, even though Honeycutt was
1 The Petition raised two additional ineffective assistance of counsel claims.
We do not address them, because Honeycutt has since conceded that they lack
merit.
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previously charged with the related offenses of sexual assault and kidnapping. See
McNeil v. Wisconsin, 501 U.S. 171, 175–76 (1991) (“The police have an interest . . .
in investigating new or additional crimes [after an individual is formally charged
with one crime.]” (alterations in original) (quoting Maine v. Moulton, 474 U.S. 159,
179 (1985)). Nor did it bar the government from using Honeycutt’s deliberately
elicited statements as evidence of guilt on the solicitation charge.
But the Sixth Amendment did forbid the government from using deliberately
elicited statements to incriminate the defendant on charges to which the right of
counsel had already attached. See Moulton, 474 U.S. at 180. Applying this rule, we
conclude that this case is indistinguishable from Moulton. Here, as in Moulton, the
state elicited incriminating statements through an informant (and undercover agent)
while the defendant was under indictment. See id. at 177 (the state “knew that [the
defendant] would make statements that he had a constitutional right not to make to
their agent prior to consulting with counsel”). Here, as in Moulton, the
incriminating statements led to a new charge being filed against Honeycutt. Here,
as in Moulton, the state used Honeycutt’s deliberately elicited statements to
incriminate him on charges to which his right of counsel had already attached.
We do not reach the issue of whether the violation of Honeycutt’s Massiah
right was harmless error. “Usually when the government fails to argue
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harmlessness, we deem the issue waived and do not consider the harmlessness of
any errors we find.” U.S. v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th Cir. 2005)
(“This makes perfect sense in light of the nature of the harmless-error inquiry: it is
the government’s burden to establish harmlessness, and it cannot expect us to
shoulder that burden for it.”). None of the exceptions to the harmless-error waiver
rule applies here. See id. at 1100–01.
AFFIRMED IN PART AND REVERSED IN PART. The parties shall
bear their own costs.
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Honeycutt v. Donat, No. 09-16758
N.R. SMITH, Circuit Judge, concurring in part, dissenting in part
I agree with the majority’s conclusions and join in Parts I through VI of their
disposition. However, I write separately in dissent, because I disagree that the
Nevada Supreme Court unreasonably applied Massiah v. United States, 377 U.S.
201 (1964), or Maine v. Moulton, 474 U.S. 159 (1985), when it denied Honeycutt’s
Massiah claim.
The majority rests its conclusion on its view that this case is
indistinguishable from Moulton. Even a cursory reading of Moulton contradicts
this view. In Moulton, the police wired an informant (one of the co-defendants) to
record a pre-planned meeting between the informant and Moulton. 474 U.S. at
164-65. The police later admitted that they were aware that the informant and
Moulton planned to discuss the charges already pending against Moulton. Id. at
165. During the meeting, the informant encouraged Moulton to engage in “a
prolonged discussion of the pending charges . . . .” Id. While Moulton had
previously suggested killing a witness, that plan was quickly dismissed during the
conversation. Id. The state never charged Moulton with solicitation nor
introduced evidence of solicitation. Id. at 167. Accordingly, the state used the
evidence elicited only to prove charges already pending during the investigation
FILED
AUG 01 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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and crimes committed contemporaneously with the previously-charged crimes. Id.
The Supreme Court concluded that the state “knowingly circumvent[ed]”
Moulton’s right to counsel and, thereby, violated Moulton’s Sixth Amendment
right. Id. at 180.
There is a difference in kind between this case and Moulton in terms of the
police’s investigation, the evidence obtained, and the state’s use of the evidence in
the two cases. Accordingly, Moulton bears only a superficial resemblance to this
case. For Moulton to be “indistinguishable” as the majority claims, there would
have to be several important factual changes. The majority’s view would require
that: (1) the state had used the informant to gather specific details of Honeycutt’s
rape of the victim; (2) the police knew, going into the investigation, that the
informant would elicit these details; (3) the state had introduced those details at
trial; (4) the state had failed to charge Honeycutt with solicitation; and (5) the state
had failed to introduce any statements about the solicitation.
Of course, just the opposite occurred in this case. The state did not seek
details of Honeycutt’s rape of the victim during its investigation of Honeycutt’s
later conspiracy to kill the victim. The police, permissibly investigating this
separate crime, see McNeil v. Wisconsin, 501 U.S. 171, 175-76 (1991), would have
had no reason to expect details about the rape to come out of the investigation.
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Indeed, no details did come forth, so no details of the previously charged crimes
were introduced at trial. Instead, the investigation brought forth details of a second
crime, solicitation, which were used at trial to prove that crime.
The majority, then, implicitly argues that anytime a second, separate crime
shows consciousness of guilt of a previously charged crime, those two crimes
cannot be tried together. No clearly established federal law sets forth this
automatic severance rule. In fact, elsewhere, the majority holds that the Nevada
Supreme Court reasonably rejected Honeycutt’s severance claim. Even more
importantly, Moulton, upon which the majority relies, says nothing about
severance or the cross-admissibility of evidence, because the facts of that case did
not implicate those issues. Thus, Moulton is distinguishable from this case, does
not establish (much less clearly establish) the law that the majority seeks to impose
upon the states, and cannot serve as the basis for relief under 28 U.S.C. § 2254(d).
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