FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KYLE J. RODNEY, 

Petitioner-Appellant, 

 v. 

TIM GARRETT, Warden; 

ATTORNEY GENERAL FOR THE 

STATE OF NEVADA, 

Respondents-Appellees.

No. 23-15624 

D.C. No. 

3:13-cv-00323-

RCJ-VPC 

OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted June 24, 2024

San Francisco, California

Filed September 6, 2024

Before: Ronald M. Gould and Marsha S. Berzon, Circuit 

Judges, and Rosemary Márquez,* District Judge.

Opinion by Judge Márquez

*The Honorable Rosemary Márquez, United States District Judge for the 

District of Arizona, sitting by designation.
2 RODNEY V. GARRETT

SUMMARY**

Habeas Corpus 

The panel affirmed the district court’s judgment on 

remand denying Kyle J. Rodney’s 28 U.S.C. § 2254 habeas 

corpus petition challenging his Nevada conviction and 

sentence for burglary while in possession of a deadly 

weapon, conspiracy to commit murder, robbery with use of 

a deadly weapon, conspiracy to commit murder, attempted 

murder with use of a deadly weapon, and battery with use of 

a deadly weapon resulting in substantial bodily harm. 

In Rodney’s prior appeal, the panel vacated and 

remanded for the district court to determine whether the 

procedural default of his claims could be excused under 

Martinez v. Ryan, 566 U.S. 1 (2012). The panel directed the 

district court to determine whether Rodney’s ineffectiveassistance-of-counsel (IAC) claims were substantial and to 

allow discovery, hold an evidentiary hearing, and consider 

new evidence as necessary to determine the substantiality of 

the claims. While the parties were briefing the Martinez 

issue in district court, the Supreme Court issued Shinn v. 

Ramirez, 596 U.S. 366 (2022). The district court determined 

that Shinn and 28 U.S.C. § 2254(e)(2) precluded it from 

considering new evidence or conducting an evidentiary 

hearing when evaluating cause and prejudice under 

Martinez. Considering only evidence in the state-court 

record, the district court determined that Rodney’s IAC 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
RODNEY V. GARRETT 3

claims were not substantial and that the procedural default 

of the claims could not be excused. 

In this appeal, Rodney argued that the district court erred 

in limiting its analysis to the state-court record and that, 

when considering the new evidence developed during 

federal habeas proceedings, his IAC claims are substantial. 

The panel rejected Rodney’s contention that Appellees 

waived any arguments based on Shinn by failing to seek 

leave to file a surreply or a supplemental brief in the district 

court after the Supreme Court issued Shinn. 

The panel held that, whether considered under the lawof-the-case doctrine or the law-of-the circuit rule, the 

Supreme Court’s decision in Shinn constitutes intervening 

authority that effectively overruled the panel’s prior opinion 

to the extent the prior opinion found that the district court 

could consider new evidence in evaluating the substantiality 

of Rodney’s IAC claims under Martinez without considering 

§ 2254(e)(2). 

The panel held that Rodney did not fail to develop the 

state-court record within the meaning of § 2254(e)(2), and 

that the district court erred in finding that it could consider 

only evidence in the state-court record in evaluating the 

substantiality of Rodney’s claims under Martinez. 

Although the district court erred in limiting its analysis 

to the state-court record, the panel declined to remand for 

purposes of allowing the district court to consider Rodney’s 

new evidence in the first instance, because the record is 

sufficiently complete to allow the panel to hold that 

Rodney’s IAC claims are not substantial. Assuming that 

Rodney’s trial counsel rendered deficient performance by 

failing to challenge the victim’s testimony concerning his 
4 RODNEY V. GARRETT

injuries, Rodney cannot establish substantial IAC claims 

because, even considering his new evidence, there is no 

reasonable probability that the result of his trial or his 

sentence would have been different but for counsel’s alleged 

errors.

COUNSEL

Courtney B. Kirschner (argued) and Jonathan M. 

Kirshbaum, Assistant Federal Public Defenders; Rene L. 

Valladares, Federal Public Defender for the District of 

Nevada; Las Vegas, Nevada; for Petitioner-Appellant. 

Elsa Felgar (argued) and Adam L. Woodrum, Deputy 

Attorneys General, State of Nevada; Aaron D. Ford, Nevada 

Attorney General; Nevada Office of the Attorney General, 

Carson City, Nevada; for Respondents-Appellees.

OPINION

MÁRQUEZ, District Judge:

Kyle J. Rodney (“Rodney”) appeals the district court’s 

denial of his petition for a writ of habeas corpus under 28 

U.S.C. § 2254. We have jurisdiction under 28 U.S.C. 

§§ 1291 and 2253, and we affirm. 

I.

Rodney was convicted following a jury trial in Nevada 

state court of burglary while in possession of a deadly 

weapon, conspiracy to commit robbery, robbery with use of 

a deadly weapon, conspiracy to commit murder, attempted 
RODNEY V. GARRETT 5

murder with use of a deadly weapon, and battery with use of 

a deadly weapon resulting in substantial bodily harm. He 

was sentenced to 50 years imprisonment with parole 

eligibility after 20 years.

Victim Ralph Monko (“Monko”) testified as follows at 

Rodney’s trial:

During the night of October 28-29, 2009, Monko won a 

total of approximately $12,000 at the Hard Rock Casino in 

Las Vegas, Nevada. Rodney approached Monko in the 

casino after observing him win nearly $10,000 on a slot 

machine. Rodney introduced himself as “Patrick,” engaged 

in small talk, and obtained Monko’s cell phone number.

When Monko left the casino, he hid $10,000 in his car 

and kept the rest of his winnings in his pocket. Rodney 

called Monko, and the two men arranged to meet at a gas 

station so that Monko could obtain marijuana from Rodney. 

Rodney arrived at the gas station in a Dodge Ram pickup 

truck, along with a woman and co-defendant Craig Downing

(“Downing”). Rodney and Downing told Monko that they 

were uncomfortable at the location because there were too 

many police officers. Monko suggested they follow him to 

his house.

When he arrived home, Monko drove into his garage and 

exited his car. Rodney and Downing approached Monko 

inside the garage, and one or both of them began to beat him 

with a bat. During the attack, one of the men pulled Monko’s 

hair back and said something like: “You’re dead now. 

You’re dead now. We’re killing you. You’re dead now.” 

Monko then saw one of the men aiming a large knife at his 

eye; Monko ducked, and the knife hit him in the head. The 

beating continued, and eventually Monko lost 
6 RODNEY V. GARRETT

consciousness. When he awoke, it was daylight. His phone, 

keys, wallet, and the money in his pocket were gone.

The back of Monko’s head “was really crushed” as a 

result of the beating. The knife sliced his skin down to the 

skull, cracked his orbital bone, and cut all the nerves. Before 

getting medical assistance, Monko couldn’t stop the 

bleeding and “was getting weaker and weaker.” He was 

taken by ambulance for treatment at Sunrise Hospital. He

needed 24-hour care for a period of time after his release

from the hospital. He suffered severe dizziness and frequent 

seizures for over two months after the attack. About two 

weeks after the attack, he was readmitted to the hospital due 

to an infection in the back of his neck. Medical providers 

were afraid the infection would enter his brain “and that 

would have been it.” Monko lost his sense of smell and taste 

as a result of brain damage from the attack, he was numb on 

the left side of his head due to severed nerves, he had shortterm memory problems and difficulty multi-tasking, he had 

a permanent scar on his forehead, he had “post traumatic 

syndrome,” and he needed to have water drained out of his 

knee four times.

In addition to presenting Monko’s testimony, the 

prosecution called Melissa Carroll (“Carroll”), a friend of 

Monko’s who assisted him in getting medical help after the 

attack; George Downey (“Downey”), a paramedic trainee

who transported Monko to the hospital; Dennis Reilly, Jr.

(“Reilly”), a friend who observed Monko’s injuries after the 

attack; and Ashley Womack (“Womack”), a woman who 

drove the Dodge Ram to Monko’s home and witnessed the 

attack. Carroll testified that she called 911 after finding 

Monko lying on the floor of his bathroom surrounded by 

blood. Monko had cuts on his head, his eyes were black and 

swollen shut, he was shivering, and Carroll was afraid he 
RODNEY V. GARRETT 7

was going to die. Downey testified that, when responding 

paramedics arrived, Monko had lacerations on his head, as 

well as bruising on his torso and around his eyes. The 

paramedics transported him to Sunrise Hospital instead of 

the closest hospital because his injuries fit the criteria for 

trauma care. Reilly testified that, after the attack, Monko 

complained of excruciating headaches; he had seizures that 

resulted in loss of consciousness; and he suffered from shortterm memory problems, hair loss, and loss of his sense of 

taste and smell. Womack testified that she observed 

Downing hit Monko with a bat he had hidden in his sleeve, 

watched Monko fall down, and saw Rodney bending over 

Monko’s body, but she did not observe the entirety of the 

attack because she turned away. It appeared Rodney and 

Downing were working together. When the group left in the 

truck, Monko was lying unconscious on his back, and it ran 

through Womack’s mind that he was more than unconscious.

The Nevada Supreme Court affirmed Rodney’s 

convictions on direct appeal. Rodney then filed a pro se 

post-conviction petition for a writ of habeas corpus in state 

court. Rodney requested the appointment of post-conviction 

counsel for purposes of investigation and discovery. The

trial court denied the post-conviction petition without 

appointing counsel or holding an evidentiary hearing, and 

the Nevada Supreme Court affirmed. Rodney filed a second 

pro se post-conviction petition and again requested the 

appointment of counsel. The trial court denied the petition 

on state procedural grounds without appointing counsel, and 

the Nevada Supreme Court affirmed. 

Rodney then filed a timely pro se petition for a writ of 

habeas corpus under 28 U.S.C. § 2254 in the United States 

District Court for the District of Nevada, and later filed an 

amended petition raising fourteen grounds for relief, 
8 RODNEY V. GARRETT

including several ineffective-assistance-of-counsel (“IAC”)

claims. In relevant part, Rodney asserted in ground three of 

the amended petition that trial counsel was ineffective in 

failing to challenge the prosecution’s medical evidence, 

failing to object to the prosecution’s presentation of medical 

testimony via unqualified witnesses, and failing to present 

expert medical testimony. In ground nine, he asserted that 

trial counsel was ineffective for failing to review and use 

Monko’s medical records; failing to object to or investigate 

Monko’s testimony that he was readmitted to the hospital as 

a result of complications from injuries incurred during the 

assault when he was actually readmitted due to an unrelated 

staph infection; and failing to impeach Monko with medical 

records showing that he never mentioned seizures to his 

doctors and was only on anti-seizure medication as a 

precaution.

The district court found that grounds three and nine of 

the amended petition were procedurally defaulted. In a prior 

appeal, we vacated and remanded for the district court to 

determine whether the procedural default of the claims could 

be excused under Martinez v. Ryan, 566 U.S. 1 (2012). See 

Rodney v. Filson, 916 F.3d 1254, 1260–63 (9th Cir. 2019). 

We found that Nevada requires prisoners to raise trial-level 

IAC claims for the first time in initial-review collateral 

proceedings and that Rodney was not represented by counsel 

during his initial-review collateral proceeding. Id. at 1260. 

We directed the district court to determine whether Rodney’s 

IAC claims were substantial and to allow discovery, hold an 

evidentiary hearing, and consider new evidence as necessary 

to determine the substantiality of the claims. Id. at 1261–62 

(citing Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) 

(en banc)).
RODNEY V. GARRETT 9

On remand, the district court granted Rodney’s motion 

for discovery and allowed the parties to submit new evidence 

and briefs addressing the substantiality of Rodney’s IAC 

claims under Martinez. Rodney submitted excerpts of 

Monko’s medical records; a report by Clinical Nurse 

Specialist Michelle Woodfall discussing inconsistencies 

between the medical records and Monko’s testimony and 

opining that Monko’s injuries were not life-threatening; and 

a declaration in which trial counsel avers that, had he been 

aware of inconsistencies that placed substantial bodily harm 

at issue, he could have impeached Monko, introduced 

portions of his medical records into evidence, and called an 

expert to refute his testimony. Appellees submitted 

additional medical records, as well as photographs of 

Monko’s injuries.

While the parties were briefing the Martinez issue in 

district court, the United States Supreme Court issued Shinn 

v. Ramirez, 596 U.S. 366 (2022). The district court 

determined that Shinn and 28 U.S.C. § 2254(e)(2) precluded 

it from considering new evidence or conducting an 

evidentiary hearing when evaluating cause and prejudice 

under Martinez. Considering only evidence in the statecourt record, the district court determined that Rodney’s IAC 

claims were not substantial and therefore that the procedural

default of the claims could not be excused pursuant to 

Martinez.

II.

The Antiterrorism and Effective Death Penalty Act of 

1996 (“AEDPA”) requires that state prisoners exhaust all 

available state-court remedies before filing a § 2254 petition. 

28 U.S.C. § 2254(b)(1). A federal habeas claim is 

technically exhausted but procedurally defaulted if the state 
10 RODNEY V. GARRETT

court declined to address the claim based on independent and 

adequate state procedural grounds. Coleman v. Thompson, 

501 U.S. 722, 729–32 (1991). A procedural default may be 

excused if the prisoner “can demonstrate cause for the 

default and actual prejudice as a result of the alleged 

violation of federal law[.]” Id. at 750.

To demonstrate cause to excuse a procedural default, a 

prisoner must “show that some objective factor external to 

the defense impeded [his] efforts to comply with the State’s 

procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 

(1986). Because there is no constitutional right to counsel in 

state post-conviction proceedings, the ineffective assistance 

of state post-conviction counsel generally cannot establish 

cause to excuse a procedural default. Coleman, 501 U.S. at 

752–54. However, in Martinez, the Supreme Court 

established a narrow exception to this rule, holding that the 

absence of or ineffective assistance of counsel at an initialreview collateral proceeding may establish cause to excuse 

a prisoner’s procedural default of substantial claims of 

ineffective assistance of trial counsel. 566 U.S. at 14; see 

also Trevino v. Thaler, 569 U.S. 413, 423 (2013).

To show that an IAC claim is “substantial,” a prisoner

“must demonstrate that the claim has some merit.” 

Martinez, 566 U.S. at 14. A claim of ineffective assistance 

of counsel in violation of the Sixth Amendment requires a 

showing of both deficient performance and prejudice. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). To 

establish deficient performance, a prisoner “must show that 

counsel’s representation fell below an objective standard of 

reasonableness” under “prevailing professional norms.” Id.

at 688. To establish prejudice, the prisoner “must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would 
RODNEY V. GARRETT 11

have been different.” Id. at 694. “A reasonable probability 

is a probability sufficient to undermine confidence in the 

outcome.” Id.

Under 28 U.S.C. § 2254(e)(2), a district court is 

prohibited from holding an evidentiary hearing on a claim if 

the prisoner “failed to develop the factual basis” of the claim 

in state-court proceedings, unless the prisoner can satisfy 

certain stringent requirements delineated at § 2254(e)(2)(A). 

In Shinn, the Supreme Court determined that, because there 

is no constitutional right to counsel in state post-conviction 

proceedings, a prisoner is at fault for failing to develop the 

factual basis of a claim in state-court proceedings for 

purposes of § 2254(e)(2) even if the failure resulted from the 

negligence of post-conviction counsel. 596 U.S. at 371, 

382–83. The Court further held that, when a prisoner has 

failed to develop the factual basis of a claim and cannot 

satisfy the stringent requirements of § 2254(e)(2)(A), a 

federal court cannot hold an evidentiary hearing or otherwise 

consider new evidence, either on the merits of the claim or 

to assess cause and prejudice under Martinez. Shinn, 596

U.S. at 389; see also McLaughlin v. Oliver, 95 F.4th 1239, 

1250 (9th Cir. 2024); but see Mullis v. Lumpkin, 70 F.4th 

906, 910 & n.3 (5th Cir. 2023).

III.

The district court granted a certificate of appealability to 

the extent Rodney’s IAC claims impact his convictions for 

attempted murder with use of a deadly weapon and 

conspiracy to commit murder. We expand the certificate of 

appealability to broadly encompass the issue of whether 

Rodney’s trial-level IAC claims are substantial for purposes 

of Martinez. See 28 U.S.C. § 2253(c)(2) (a certificate of 
12 RODNEY V. GARRETT

appealability may issue “if the applicant has made a 

substantial showing of the denial of a constitutional right).

IV.

Rodney argues that the district court erred in limiting its 

analysis to the state-court record and that, when considering 

the new evidence developed during federal habeas 

proceedings, his IAC claims are substantial.

Rodney contends, first, that Appellees waived any 

arguments based on Shinn by failing to seek leave to file a 

surreply or a supplemental brief in the district court after the 

Supreme Court issued Shinn. However, the Local Rules of 

the District of Nevada discourage motions for leave to file 

surreplies, Nev. Dist. Ct. Loc. R. 7-2(b), and Rodney cites 

no authority holding that a party must seek leave to file a 

discouraged surreply to avoid waiving arguments based on 

intervening authority. Furthermore, Rodney has not shown 

that the district court erred in considering the effect of Shinn

notwithstanding Appellees’ failure to move for leave to file 

a surreply. Cf. United States v. Garcia, 77 F.3d 274, 276 

(9th Cir. 1996) (sua sponte examining effect of intervening 

authority).

Rodney next argues that Shinn does not apply when a 

prisoner was unrepresented during state post-conviction 

proceedings, and that our prior opinion’s holding that the 

district court could hold an evidentiary hearing remains the 

law of the case. We hold that, whether considered under the 

law-of-the-case doctrine or the law-of-the circuit rule, the 

Supreme Court’s decision in Shinn constitutes intervening 

authority that effectively overruled and warrants 

reconsideration of our prior opinion.
RODNEY V. GARRETT 13

“Under the law of the case doctrine, a court will 

generally refuse to reconsider an issue that has already been 

decided by the same court or a higher court in the same 

case,” unless an exception, such as “intervening controlling 

authority,” makes reconsideration appropriate. Gonzalez v. 

Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc). 

Under the law-of-the-circuit rule, a published decision of the 

Ninth Circuit “constitutes binding authority which must be 

followed unless and until overruled by a body competent to 

do so.” Id. (internal quotation marks and citation omitted). 

Circuit precedent is considered effectively overruled if 

intervening Supreme Court authority has “undercut the 

theory or reasoning underlying the prior circuit precedent in 

such a way that the cases are clearly irreconcilable.” Miller 

v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

We previously found, based on circuit precedent, that 

§ 2254(e)(2) does not bar district courts from holding 

evidentiary hearings on Martinez claims because a state 

prisoner “seeking to show cause based on a lack of postconviction counsel is ‘not asserting a “claim” for relief as 

that term is used in § 2254(e)(2).’” Rodney, 916 F.3d at 

1261 (quoting Dickens, 740 F.3d at 1321). The Supreme 

Court in Shinn declined to address that specific proposition, 

but it irreconcilably undercut the theory by holding that the 

prohibition on needlessly prolonging federal habeas 

proceedings forbids the consideration of new evidence to 

evaluate cause and prejudice under Martinez when the new 

evidence cannot, under § 2254(e)(2), be considered on the 

merits of the prisoner’s IAC claims. 596 U.S. at 388–90. 

Furthermore, although Shinn addressed cases in which the 

prisoners had been represented by counsel during state postconviction proceedings, the Supreme Court affirmed that 

§ 2254(e)(2) applies when “‘there is lack of diligence, or 
14 RODNEY V. GARRETT

some greater fault, attributable to the prisoner or the 

prisoner’s counsel.’” Id. at 383 (quoting Williams v. Taylor, 

529 U.S. 420, 432 (2000) (emphasis altered)). Accordingly, 

Shinn effectively overruled our prior opinion to the extent 

we found that the district court could consider new evidence 

in evaluating the substantiality of Rodney’s IAC claims

under Martinez without considering § 2254(e)(2).

V.

Rodney argues in the alternative that § 2254(e)(2) does 

not preclude factual development in this case because he did 

not fail to develop the factual bases of his IAC claims in state 

court within the meaning of that statute. We agree that the 

district court erred in finding Rodney at fault for purposes of

§ 2254(e)(2).

Section 2254(e)(2) precludes an evidentiary hearing on a 

claim only when a prisoner “has failed to develop the factual 

basis of a claim in State court proceedings.” The opening 

clause of the statute “directs attention to the prisoner’s 

efforts in state court.” Williams, 529 U.S. at 431. As 

discussed above, a prisoner fails to develop a claim for 

purposes of § 2254(e)(2) when “there is lack of diligence, or 

some greater fault, attributable to the prisoner or the 

prisoner’s counsel.” Id. at 432. A finding of diligence 

“depends upon whether the prisoner made a reasonable 

attempt, in light of the information available at the time, to 

investigate and pursue claims in state court.” Id. at 435. A 

prisoner “is not at fault” for purposes of § 2254(e)(2) “when 

his diligent efforts to perform an act are thwarted . . . by the 

conduct of another or by happenstance.” Id. at 432.

The Supreme Court recognized in Martinez that pro se 

prisoners are “in no position to develop the evidentiary basis 

for a claim of ineffective assistance, which often turns on 
RODNEY V. GARRETT 15

evidence outside the trial record.” 566 U.S. at 12. In Alberni 

v. McDaniel, we found that a prisoner was diligent in his 

efforts to develop the state-court record where he requested 

the appointment of post-conviction counsel and his request 

was denied. 458 F.3d 860, 873 (9th Cir. 2006). Similarly, 

here, Rodney requested the appointment of post-conviction 

counsel during his initial-review collateral proceeding and 

specifically argued that counsel was necessary to proceed 

with discovery and investigation. The state court did not 

appoint counsel, did not allow discovery, and declined to 

hold an evidentiary hearing.1 Rodney’s IAC claims hinge 

on Monko’s medical records and expert testimony. An 

indigent prisoner who is denied counsel and discovery has 

no practical likelihood of obtaining a victim’s medical 

records or procuring expert testimony. By requesting the 

appointment of counsel and arguing that counsel was 

necessary for purposes of investigation and discovery, 

Rodney did all that he could to develop the evidentiary bases 

of his IAC claims in state court. Accordingly, he did not fail 

to develop the state-court record within the meaning of 

§ 2254(e)(2), and the district court erred in finding that it 

could consider only evidence in the state-court record in 

evaluating the substantiality of Rodney’s IAC claims under 

Martinez.

1 In Nevada, a court may allow discovery and expansion of the record 

during post-conviction proceedings only if the court determines that an 

evidentiary hearing is required. See N.R.S. § 34.780(2); N.R.S. 

§ 34.790(1). The court must determine whether an evidentiary hearing 

is required, regardless of whether a petitioner requests such a hearing. 

See N.R.S. § 34.770(1).
16 RODNEY V. GARRETT

VI.

Although we hold that the district court erred in limiting 

its analysis to the state-court record, we decline to remand 

for purposes of allowing the district court to consider 

Rodney’s new evidence in the first instance, because the 

record is “sufficiently complete” to allow us “to hold without 

hesitation” that Rodney’s IAC claims are not substantial. 

Sexton v. Cozner, 679 F.3d 1150, 1161 (9th Cir. 2012). 

Assuming that Rodney’s trial counsel rendered deficient 

performance by failing to challenge Monko’s testimony 

concerning his injuries, Rodney nevertheless cannot 

establish substantial IAC claims under the Strickland

standard because, even considering his new evidence, there 

is no reasonable probability that the result of his trial would 

have been different but for counsel’s alleged errors.

The alleged errors of trial counsel do not impact 

Rodney’s convictions for burglary while in possession of a 

deadly weapon, conspiracy to commit robbery, and robbery 

with use of a deadly weapon. With respect to his conviction 

for battery with use of a deadly weapon resulting in 

substantial bodily harm, Rodney argues that there is a 

reasonable probability the jury would not have found 

substantial bodily harm but for counsel’s alleged errors. 

With respect to his convictions for attempted murder with 

use of a deadly weapon and conspiracy to commit murder, 

Rodney argues that the jury may not have found the intentto-kill element. He further argues that impeaching Monko 

with his medical records or through an expert witness would 

have led the jury to disbelieve the entirety of Monko’s

testimony. But even if the jury had entirely discredited 

Monko’s testimony, there was sufficient corroborating 

evidence to preclude any reasonable probability of an 

acquittal. 
RODNEY V. GARRETT 17

Nevada law defines “substantial bodily harm” as 

“[b]odily injury which creates a substantial risk of death or 

which causes serious, permanent disfigurement,” the 

“protracted loss or impairment of the function of any bodily 

member or organ,” or “[p]rolonged physical pain.” N.R.S. 

§ 0.060. Taken together, the evidence presented at trial and 

the new evidence developed during Rodney’s federal habeas 

proceedings shows that Monko suffered prolonged physical 

pain: Reilly testified that Monko complained of excruciating 

headaches after the attack, and the Sunrise Hospital medical 

records reflect that Monko complained of pain during his 

initial visit to the hospital and during multiple subsequent 

visits, and was repeatedly prescribed pain medication. 

Given that a finding of prolonged physical pain is sufficient 

on its own to establish substantial bodily harm, there is no 

reasonable probability that the jury would not have found 

substantial bodily harm, even if trial counsel had challenged 

Monko’s testimony concerning his injuries. Furthermore, 

evidence beyond Monko’s testimony shows that Monko also 

suffered bodily injury creating a substantial risk of death, 

permanent disfigurement, and the protracted loss or 

impairment of the function of any bodily member or organ. 

The jury viewed a permanent scar that Monko incurred as a 

result of the attack, and Monko’s testimony concerning the 

loss of his sense of taste and smell was corroborated by 

Reilly’s testimony. In addition, the nature of Monko’s 

injuries indicate he sustained lacerations from a knife or 

other sharp object, and Womack testified that Monko was 

beaten with a bat until he lost consciousness. Even if defense 

counsel had presented expert testimony that Monko’s 

injuries were ultimately not life-threatening, the injuries 

were of a type that create a substantial risk of death. There 

is no reasonable probability that a jury would have found 
18 RODNEY V. GARRETT

Rodney not guilty of battery with use of a deadly weapon 

resulting in substantial bodily harm if trial counsel had 

challenged Monko’s testimony concerning the extent of his 

injuries.

There is also no reasonable probability that, but for trial 

counsel’s alleged errors, the jury would not have found the 

intent-to-kill element of the attempted murder with use of a 

deadly weapon and conspiracy to commit murder charges. 

An intent to kill under Nevada law may be “inferred by the 

jury from the individualized, external circumstances of the 

crime,” including “from the manner of the defendant’s use 

of a deadly weapon.” Valdez v. State, 196 P.3d 465, 481 

(Nev. 2008); see also N.R.S. § 193.200. Monko’s testimony 

provided the only evidence that either defendant stated, 

“You’re dead now. We’re killing you.” But other evidence 

showed that Rodney targeted and pursued Monko, that the 

attack on Monko was premeditated, and that Rodney left 

Monko unconscious in a pool of his own blood. Surveillance 

footage from the casino showed Rodney watching, and 

eventually approaching, Monko after his slot machine win, 

and Monko’s phone records included calls between him and 

Rodney leading up to the time of the attack. Womack 

testified that, at the request of Rodney’s girlfriend, she drove 

Rodney and Downing to the casino to meet a “friend” who 

had won $9,000; along the way, Rodney talked to someone 

on the phone, then instructed Womack to drive to the gas 

station instead. According to Womack, Downing began to 

beat Monko immediately upon entering Monko’s garage 

with a bat that he had hidden up his sleeve; Downing and 

Rodney appeared to be working together; and Monko was 

unconscious, or possibly worse, when they drove away. 

There is no reasonable probability the jury would not have 

found an intent to kill where Rodney coordinated the meet-
RODNEY V. GARRETT 19

up with Monko, at minimum stood watch while Downing 

beat Monko with a deadly weapon, and left Monko alone and 

unconscious, with grievous injuries.

Monko’s testimony provided the only evidence that 

Rodney handled a weapon or struck or stabbed the victim.2 

But Rodney was charged with battery and attempted murder 

under conspiracy and aiding and abetting theories, in 

addition to principal liability. The prosecution was not 

required to prove that Rodney personally carried out each act 

constituting the offenses for the jury to find Rodney guilty 

under conspiracy and aiding and abetting theories. See 

Washington v. State, 376 P.3d 802, 809 (Nev. 2016) (“[a] 

person who knowingly does any act to further the object of 

a conspiracy, or otherwise participates therein, is criminally 

liable as a conspirator”); Sharma v. State, 56 P.3d 868, 873 

(Nev. 2002) (an accomplice with the requisite mens rea is as 

culpable as the person who actually perpetrates the offense); 

see also N.R.S. § 195.020.

3

Accordingly, even if trial counsel had presented expert 

witness testimony that Monko’s injuries were ultimately not 

life-threatening, and even if trial counsel had successfully 

precluded or impeached the entirety of Monko’s testimony, 

there was still significant evidence supporting the 

conspiracy, attempted murder, and battery charges.

2 Womack testified that she never saw a knife, nor did she see Rodney 

strike Monko or hold a weapon, but she was turned away from the garage 

for much of the beating.

3 With respect to the battery charge, the evidence showing an intent to 

kill also supports a finding that Rodney intended for a “willful and 

unlawful use of force or violence” to be used upon Monko. N.R.S. 

§ 200.481(a); see also Washington, 376 P.3d at 809; Sharma, 56 P.3d at 

873.
20 RODNEY V. GARRETT

Finally, Rodney argues that, but for trial counsel’s 

alleged errors, the result of his sentencing would have been 

different. But Rodney cannot establish prejudice at 

sentencing, because the inconsistencies between Monko’s 

trial testimony and his medical records do not undermine the 

trial judge’s observation at sentencing that Rodney and 

Downing went “beyond just robbing” Monko and “beat[] 

him senselessly.” Given the severity of Monko’s injuries as 

reflected in his medical records, there is no reasonable 

probability that the result of Rodney’s sentencing would 

have been different but for trial counsel’s alleged errors.

AFFIRMED.