MIRANDA M. DU, District Judge.
This habeas corpus action is brought by Carl Otis Sullivan, who is serving prison terms on convictions in Nevada's Second Judicial District Court, based on guilty pleas pursuant to a plea agreement, for robbery, burglary, and possession of stolen property. Sullivan's convictions all result from his burglary of a Reno, Nevada, home, his robbery of an automobile, and his possession of stolen property taken from the home. Sullivan's amended habeas petition is before the Court on the merits of his claims. The Court will deny all the claims asserted by Sullivan in his amended petition, and the Court will deny Sullivan a certificate of appealability.
As Sullivan's conviction was upon a guilty plea, before trial, the facts regarding his crimes have not been fully developed. However, the presentence investigation report, prepared for purposes of Sullivan's sentencing, and filed as an exhibit by him in this action, states the following:
Presentence Investigation Report, Exhibit 44, pp. 5-7; see also Transcript of Proceedings of August 6, 2003, Exhibit 30, pp. 49-50, 70 (testimony of Sullivan at evidentiary hearing, recounting his commission of the crimes).
Sullivan waived a preliminary hearing, and on December 29, 1997, was charged by information with robbery with the use of a deadly weapon, burglary, and possession of stolen property. See Exhibits 2 and 3.
On January 7, 1998, Sullivan entered a plea agreement. Guilty Plea Memorandum, Exhibit 4. Sullivan agreed to plead guilty to the charges in the information. Id. The State agreed, with regard to Sullivan's sentence, that it would "concur with the recommendation of the Division of Parole and Probation." Id. at 4. The State also agreed not to pursue any other charges against Sullivan. See Transcript of Proceedings of January 8, 1998, Exhibit 5, pp. 2-4. Additionally, the State agreed not to pursue the deadly-weapon enhancements. Id. at 3-4. On January 7, 1998, Sullivan entered his guilty pleas, pursuant to the plea agreement. See id.
Sullivan's sentencing hearing was on February 13, 1998. See Transcript of Proceedings of February 13, 1998, Exhibit 7. The Division of Parole and Probation recommended: a prison term of 156 months, with minimum parole eligibility of 35 months, for the robbery; a consecutive prison term of 96 months, with minimum parole eligibility of 22 months, for the burglary; and a consecutive prison term of 96 months, with minimum parole eligibility of 22 months, for possession of stolen property. Presentence Investigation Report, Exhibit 44, p. 12. At the sentencing hearing, Sullivan's counsel presented to the court a letter from a doctor, regarding Sullivan's substance abuse, its effect on his commission of the crimes, and his willingness to seek treatment, and counsel argued for a lesser sentence, specifically, that the three sentences run concurrently. See Transcript of Proceedings of February 13, 1998, Exhibit 7, pp. 3-5. The prosecutor responded, discussing Sullivan's significant prior criminal record, the serious nature of the crimes he committed in this case, Sullivan's lack of remorse, and the danger he posed to the community, and the prosecutor asked the court to impose consecutive sentences as recommended by the Division of Parole and Probation. Id. at 5-7. The victims then made statements. Id. at 7-12. Sullivan also made a statement. Id. at 12-14. The court sentenced Sullivan as recommended by the Division of Parole and Probation: a prison term of 156 months, with minimum parole eligibility of 35 months, for the robbery; a consecutive prison term of 96 months, with minimum parole eligibility of 22 months, for the burglary; and a consecutive prison term of 96 months, with minimum parole eligibility of 22 months, for possession of stolen property. Id. at 14-15; see also Order of Amended Judgment, Exhibit 23. The court also ordered Sullivan to pay restitution in the amount of $12,000. Transcript of Proceedings of February 13, 1998, Exhibit 7, p. 14; Order of Amended Judgment, Exhibit 23.
Sullivan appealed. See Notice of Appeal, Exhibit 9. On December 13, 1999, the Nevada Supreme Court determined that there was an error in the judgment with respect to the robbery conviction; Sullivan pled guilty to robbery without use of a deadly weapon, but the judgment of conviction indicated that the robbery was with use of a deadly weapon. Sullivan v. State, 115 Nev. 383, 390-91, 990 P.2d 1258 (1999) (the Nevada Supreme Court's opinion is found in the record at Exhibit 12). The court affirmed, but remanded the case to the state district court for the limited purpose of correcting the clerical mistake in the judgment. Id. at 391; see also Sullivan v. State, 120 Nev. 537, 538, 96 P.3d 761 (2004). On January 3, 2000, the state district court entered a corrected judgment. Exhibit 15. The Nevada Supreme Court's remittitur issued on January 10, 2000. Exhibit 14.
On May 10, 2000, Sullivan filed, in the state district court, a petition for writ of habeas corpus. Exhibit 16.
On December 11, 2001, while Sullivan's state-court habeas petition was pending in the state district court, apparently realizing that the corrected judgment was entered before the Nevada Supreme Court's remittitur issued, the state district court vacated the corrected judgment (Exhibit 22), and entered a new Order of Amended Judgment (Exhibit 23).
Counsel was appointed for Sullivan for his state-court habeas petition, and counsel supplemented his petition. Exhibits 24, 49. On August 6, 2003, the state district court held an evidentiary hearing. Transcript of Proceedings of August 6, 2003, Exhibit 30. Sullivan's trial counsel testified. Id. at 7-45. Sullivan also testified. Id. at 46-71. In an order entered September 17, 2003, the state district court denied Sullivan's petition. Findings of Fact, Conclusions of Law and Judgment, Exhibit 32.
Sullivan appealed. See Notice of Appeal, Exhibit 34; Fast Track Statement, Exhibit 36. The Nevada Supreme Court affirmed on March 5, 2004. Sullivan v. State, 120 Nev. 537, 96 P.3d 761 (2004) (the Nevada Supreme Court's opinion is found in the record at Exhibit 42).
This court received from Sullivan a pro se habeas petition, and a request for appointment of counsel, on March 31, 2005 (dkt. nos. 8, 9). Counsel was appointed (dkt. nos. 7, 10). On January 19, 2006, counsel filed an amended habeas petition on Sullivan's behalf (dkt. no. 14).
On February 22, 2006, respondents filed a motion to dismiss (dkt. no. 28), arguing that Sullivan's petition is untimely, that certain claims are unexhausted, and that certain claims are barred by the doctrine of procedural default. On August 21, 2006, the Court granted the motion to dismiss, ruling Sullivan's petition barred by the statute of limitations. Order entered August 21, 2006, dkt. no. 43. In that order, the Court also ruled that the petition was not barred by the procedural default doctrine. Id. The Court did not address the question of the exhaustion of Sullivan's claims in state court. Id. The action was dismissed. Id.; Judgment, dkt. no. 44.
Sullivan appealed (dkt. no. 45). The court of appeals reversed in part, and remanded the case to this Court for further consideration of the potential impact of the intervening authority in Harris v. Carter, 515 F.3d 1051 (9th Cir.), cert. denied, 555 U.S. 967 (2008), upon this Court's ruling that Sullivan had not established a basis for equitable tolling. Memorandum Order of Court of Appeals, dkt. no. 53.
On remand, on March 31, 2009, this Court again granted the motion to dismiss, and dismissed the action as time-barred. Order entered March 31, 2009, dkt. no. 64; Judgment, dkt. no. 65.
Sullivan again appealed (dkt. no. 66). On July 21, 2010, the court of appeals vacated the judgment and remanded, ruling that Sullivan was entitled to equitable tolling and that his federal habeas petition was, therefore, timely filed. Memorandum Order of Court of Appeals, dkt. no. 76.
Following that remand, respondents filed their answer on February 24, 2011 (dkt. no. 85), and Sullivan filed a reply on May 2, 2011 (dkt. no. 90).
28 U.S.C. § 2254(d) sets forth the standard of review, applicable to this case, under the Antiterrorism and Effective Death Penalty Act (AEDPA):
28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
The Supreme Court has further instructed that "[a] state court's determination that 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, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has also emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer, 538 U.S. at 75; see also Cullen v. Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the AEDPA standard as "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).
The state court's "last reasoned decision" is the ruling subject to section 2254(d) review. Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). If the last reasoned state-court decision adopts or substantially incorporates the reasoning from a previous state-court decision, a federal habeas court may consider both decisions to ascertain the state court's reasoning. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc).
If the state supreme court denies a claim but provides no explanation for its ruling, the federal court still affords the ruling the deference mandated by section 2254(d); in such a case, the petitioner is entitled to federal habeas corpus relief only if "there was no reasonable basis for the state court to deny relief." Harrington, 131 S.Ct. at 784.
The analysis under section 2254(d) looks to the law that was clearly established by United States Supreme Court precedent at the time of the state court's decision. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
In Ground 1 of his amended habeas petition, Sullivan claims that he was "deprived of his due process rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution by the State's breach of its plea agreement with Sullivan during the sentencing proceedings." Amended Petition (dkt. no. 14), p. 5.
In the plea agreement, the State agreed, with regard to Sullivan's sentence, that it would "concur with the recommendation of the Division of Parole and Probation." Guilty Plea Memorandum, Exhibit 4, p. 4. The Division of Parole and Probation recommended consecutive sentences. Presentence Investigation Report, Exhibit 44, p. 12. Sullivan's counsel presented to the court a letter from a doctor, regarding Sullivan's substance abuse, its effect on his commission of the crimes, and his willingness to seek treatment, and he argued for a lesser sentence, specifically, that the three sentences run concurrently. See Transcript of Proceedings of February 13, 1998, Exhibit 7, pp. 3-5. The prosecutor responded to that argument, discussing Sullivan's significant prior criminal record, the serious nature of the crimes he committed in this case, Sullivan's lack of remorse, and the danger he posed to the community, and the prosecutor asked the court to impose consecutive sentences as recommended by the Division of Parole and Probation. Id. at 5-7. Citing Santobello v. New York, 404 U.S. 257 (1971), Sullivan contends that this amounted to a breach of the plea agreement, in violation of his federal constitutional rights.
Regarding this claim, the Nevada Supreme Court ruled as follows:
Sullivan, 115 Nev. at 385-91, 990 P.2d at 1259-63.
This Court agrees with the conclusion reached by the Nevada Supreme Court. The plea agreement did not preclude the State from arguing in favor of the sentence that it agreed to — the sentence recommended by the Division of Parole and Probation. As agreed, the prosecutor specifically asked the court to impose the sentence recommended by the Division of Parole and Probation. See Transcript of Proceedings of February 13, 1998, Exhibit 7, p. 12 ("Your Honor, if I may just make the record clear, the State asks that you follow the recommendation by the Division of Parole and Probation."). The prosecutor's arguments at the sentencing were wholly consistent with the State's agreement to concur with the recommendation of the Division of Parole and Probation. There was no violation of the terms or spirit of the plea agreement.
The ruling of the Nevada Supreme Court was not contrary to, or an unreasonable application of, Santobello, and was not based on an unreasonable determination of the facts in light of the evidence.
In Ground 2, Sullivan claims that he "was deprived of his right to due process and a fair trial guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution due to the improper victim impact statements which were highly speculative and highly prejudicial." Amended Petition, p. 7.
The two victims of Sullivan's crimes made statements at the sentencing hearing. The statement of the first of the victims was as follows:
Transcript of Proceedings of February 13, 1998, Exhibit 7, pp. 7-8. The statement of the other victim was as follows:
Id. at 9-12. Sullivan contends that his constitutional right to a fair sentencing was violated by the following specific comment of the first victim: "To me it's apparent that Mr. Sullivan was willing to kill to commit this crime." See Amended Petition, pp. 7-8. And, Sullivan complains of the following specific comments of the second victim: that Sullivan's "demeanor was that of a man who had killed to obtain his goal;" that he had "a feeling Carl Sullivan would be facing murder charges too," if his mother or fiancée had walked in on him during the burglary; that "Carl Sullivan didn't succeed in taking [his] life the first time, so he tried to run [him] over with the car he just stole;" that he "knew this was a violent man who was prepared and ready to kill whomever was in his way, so that he may commit his crime;" and that he had "to wonder how many unsolved crimes is this man responsible for." See id.
Respondents argue, in their answer, that this claim was not exhausted in state court. Answer (dkt. no. 85), pp. 25-26. Respondents contend, in this regard, that, while Sullivan raised a similar claim in the Nevada Supreme Court, he did not there challenge all the specific comments of the victims that he complains of in federal court. Id.
A federal court may not grant habeas corpus relief on a claim not exhausted in state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is intended to allow state courts the initial opportunity to correct constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the claim to the highest state court, and must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).
The court finds that this claim is exhausted. Sullivan's argument to the state supreme court reasonably encompassed the claim made here in federal court. See Fast Track Statement, Exhibit 10, pp. 6-8. Also, in the state supreme court, Sullivan cited Buschauer v. State, 106 Nev. 890, 804 P.2d 1046 (1990), in which the Nevada Supreme Court relied in part on Supreme Court precedent — albeit Supreme Court precedent that had been overruled some seven years earlier. See Fast Track Statement, Exhibit 10, pp. 6-8, citing Booth v. Maryland, 482 U.S. 496 (1987), overruled in Payne v. Tennessee, 501 U.S. 808 (1991).
The Court, however, finds the claim to be meritless. The only Supreme Court precedent cited by Sullivan in support of the claim is Payne v. Tennessee, 501 U.S. 808 (1991). In Payne, the Court overruled Booth, and retreated from a per se rule barring, in a capital sentencing, admissibility of victim impact evidence regarding a victim's personal characteristics and the victim's family's emotional trauma. In support of his claim here in Ground 2, Sullivan appears to rely on dicta in Payne, wherein the Court noted in passing that "[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Payne, 501 U.S. at 825. Following that sentence in Payne, the Court cited to Darden v. Wainwright, 477 U.S. 168, 179-183 (1986), which concerned juror bias and voir dire. While this Court generally agrees with the proposition that the Due Process Clause provides a mechanism for relief where evidence introduced at a sentencing is so unduly prejudicial that it renders the trial fundamentally unfair, the Court finds that the dicta in Payne is not the kind of "clearly established Federal law, as determined by the Supreme Court of the United States" that 28 U.S.C. § 2254(d)(1) contemplates as a basis for federal habeas corpus relief.
Furthermore, the Court finds that the victims' statements in this case certainly did not render Sullivan's sentencing fundamentally unfair. Those statements reflected the victims' quite understandable emotional reaction to Sullivan's crimes. The statements did not refer to any particular prior criminal acts by Sullivan, but only expressed that Sullivan's crimes led the victims to wonder what other crimes Sullivan had committed. As far as the victims' statements regarding the danger that Sullivan posed, the statements were the victims' legitimate impressions of the perpetrator of serious, violent crimes against them.
Moreover, this Court assumes that the trial judge applied the law, and considered only admissible evidence in sentencing Sullivan. See Landrigan v. Stewart, 272 F.3d 1221, 1230 (9th Cir.2001); Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir.1998) (a judge can "separate the wheat from the chaff").
The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of, United States Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence.
In Ground 3, Sullivan claims that his "due process rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution were violated as the result of duplicative charges which resulted from one transaction." Amended Petition, p. 9.
The respondents contend that this claim is unexhausted in state court. Answer, pp. 26-27. The Court finds, however, that Sullivan sufficiently presented the claim in state court, such that it is exhausted. See Fast Track Statement, Exhibit 36, p. 6; see also Memorandum in Opposition to, and Motion for Partial Dismissal of, Supplemental Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 27, pp. 3-4 (State responded to claim as a double jeopardy claim).
The respondents also contend that this claim is barred by the procedural default doctrine. Answer, pp. 30-31. However, the Court has previously ruled that the procedural default doctrine does not bar any of Sullivan's claims. See Order entered August 21, 2006, dkt. no. 43, pp. 15-17. The court of appeals did not disturb that ruling on either of Sullivan's appeals. See Memorandum Order of Court of Appeals, dkt. no. 53; Memorandum Order of Court of Appeals, dkt. no. 76. This Court's ruling regarding respondents' procedural default defense remains in force pursuant to the law of the case doctrine. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997) ("[A] court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.), cert. denied 508 U.S. 951 (1993))). The respondents have not demonstrated any circumstance warranting re-examination of this court's ruling regarding their procedural default defense. See id. (identifying circumstances in which a court has discretion to depart from the law of the case doctrine).
Regarding its merits, however, Sullivan's claim in Ground 3 is meritless.
The state district court ruled as follows:
Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, p. 4. The Nevada Supreme Court affirmed this ruling on its merits (in the alternative to its ruling that Sullivan's petition was untimely), without discussion. See Sullivan, 120 Nev. at 542, 96 P.3d at 765.
The Supreme Court rulings Sullivan cites in support of this claim are Benton v. Maryland, 395 U.S. 784 (1969), and Brown v. Ohio, 432 U.S. 161 (1977). See Amended Petition, p. 9; Reply, pp. 17-18. Neither of those Supreme Court precedents remotely supports an argument that the state courts' ruling on this claim was objectively unreasonable. Notably, in Brown, the Supreme Court instructed:
The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. . . ."
This test emphasizes the elements of the two crimes. "If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . ." Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1294 n.17, 43 L.Ed.2d 616 (1975). Brown, 432 U.S. at 166. For good reason, Sullivan does not make any argument in this Court, and he did not argue in state court, that conviction of the crimes of robbery, burglary and possession of stolen property require proof of the same elements.
Moreover, in this case, not only would those three charged crimes have required proof of different elements, they were based on distinctly different facts: the robbery charge was based on Sullivan's theft of the automobile; the burglary charge was based on Sullivan's entry of the residence to commit the thefts; and the possession of stolen property charge was based on Sullivan's possession of mink coats, a camera, a compact disc player, a video cassette recorder and miscellaneous jewelry stolen from the residence. See Information, Exhibit 3, pp. 1-3.
There was no double jeopardy violation. The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Benton or Brown, or any other United States Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence.
In Ground 4, Sullivan claims that he "was deprived of his right to due process guaranteed by the Eighth and Fourteenth Amendment of the United States Constitution due to the trial court's erroneous imposition of restitution in the amount of $12,000 when not a scintilla of evidence was provided to support such an exorbitant amount." Amended Petition, p. 10.
Respondents argue that Ground 4 is unexhausted. Answer, p. 27. However, Sullivan did, in his state habeas petition, raise a due process claim with respect to the restitution award, and, while he made no real argument regarding that claim in the Nevada Supreme Court, he alerted the court that the claim was raised. See Petition for Writ of Habeas Corpus, Exhibit 16, p. 6; Fast Track Statement, Exhibit 36, pp. 5, 9-10. The Nevada Supreme Court affirmed the denial of the claim without any discussion. Ground 4 is exhausted.
The respondents also contend that this claim is barred by the procedural default doctrine. Answer, pp. 30-31. However, as is discussed above, this Court has already ruled that the procedural default doctrine does not bar any of Sullivan's claims, and that ruling is the law of the case. See Order entered August 21, 2006, dkt. no. 43, pp. 15-17.
Ground 4 is, however, without merit. Sullivan does not cite to any United States Supreme Court precedent in support of this claim. See Amended Petition, p. 10; Reply, pp. 18-19. Therefore, he makes no showing that the state courts' ruling on the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," under 28 U.S.C. § 2254(d).
Moreover, with respect to Sullivan's factual argument in support of the claim, there was in fact evidence presented in state court regarding the amount of damages that the victims suffered. The presentence investigation report stated:
Presentence Investigation Report, Exhibit 44, p. 8. And, at the sentencing hearing, the first of the victims stated the following:
Transcript of Proceedings of February 13, 1998, Exhibit 7, p. 8. The other victim stated that the physical injury that he suffered during the robbery could be a lifetime disability:
Id. at 10. There was, therefore, evidence supporting the sentencing court's imposition of $12,000 in restitution.
In this federal habeas action, apparently in an effort to show that there was evidence available that might have shown the victims' damages to be less than $12,000, Sullivan proffers as an exhibit what is purported to be a letter from an insurer. See Amended Petition, p. 10; Reply, p. 19; see also Letter, Exhibit 43. It appears from the record, however, that the letter was never presented in state court. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, p. 8 (State district court stated, about the letter: "The Court notes that no such letter was introduced in evidence at the habeas corpus hearing and thus this court cannot find that the letter exists, or that it was admissible or that it was of such a nature as to have had any impact on the sentencing.") A state court's decision may be assessed, under 28 U.S.C. § 2254(d), only in light of the record before that court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) ("It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."). In analyzing Ground 4 under section 2254(d), the Court does not take into consideration the letter submitted by Sullivan as Exhibit 43.
The Court finds that the Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of any United States Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence.
In Ground 5, Sullivan claims violations of his constitutional right to effective assistance of counsel. Amended Petition, p. 10.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming ineffective assistance of counsel must demonstrate (1) that his attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688; see also id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
The Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of the 28 U.S.C. § 2254(d) analysis. See Pinholster, 131 S.Ct. at 1403. Courts have recognized that a "doubly" deferential judicial review is called for in analyzing ineffective assistance of counsel claims in federal habeas actions. See id. at 1410-11. The general rule of Strickland, that defense counsel's effectiveness is to be reviewed with great deference, gives the state courts greater leeway in reasonably applying Strickland, which in turn "translates to a narrower range of decisions that are objectively unreasonable under AEDPA." Cheney, 614 F.3d at 995 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The ultimate question, then, is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 131 S.Ct. at 788. Ground 5 includes three subclaims, Grounds 5A, 5B and 5C.
In Ground 5A, Sullivan claims that his right to effective assistance of counsel was violated on account of his trial counsel's "[f]ailure to investigate the case and present mitigating evidence at sentencing." Amended Petition, p. 11. There are three aspects of Sullivan's claim in this regard: first, he claims that his trial counsel "failed to interview the state's witnesses" and discover "that Sullivan was under the influence at the time of the offense," and he claims that his "mental state could have been a defense at trial or a mitigating factor at sentencing;" second, he claims that his trial counsel "failed to conduct investigation regarding the amount of damages to which Sullivan would be responsible in the form of restitution;" and third, he claims that his trial counsel "failed to present any mitigating evidence at Sullivan's sentencing hearing," and did not advise Sullivan of the importance or the opportunity to present such evidence." Id.
Respondents argue that Ground 5A is unexhausted. Answer, pp. 27-28. This Court, however, finds that Sullivan raised the claim before the Nevada Supreme Court on the appeal in his state habeas action. See Fast Track Statement, Exhibit 36, pp. 6-9. Ground 5A is exhausted.
The respondents also contend that this claim is barred by the procedural default doctrine. Answer, pp. 30-31. However, as is discussed above, this Court has already ruled that the procedural default doctrine does not bar any of Sullivan's claims, and that ruling is the law of the case. See Order entered August 21, 2006, dkt. no. 43, pp. 15-17.
The state district court ruled as follows:
Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, pp. 4-10. The Nevada Supreme Court affirmed this ruling on its merits (in the alternative to its ruling that Sullivan's petition was untimely), without discussion. See Sullivan, 120 Nev. at 542, 96 P.3d at 765.
Sullivan has made no showing that the state courts' ruling was objectively unreasonable.
Regarding the claim that Sullivan's trial counsel was ineffective for failing to interview the state's witnesses and discover that Sullivan was under the influence at the time of the offense, in state court Sullivan made no showing what witnesses should have been interviewed, and he made no showing what any witness would have said. Furthermore, Sullivan, himself, obviously knew that he was under the influence of alcohol and heroin when he committed the crimes, and he testified about that at the evidentiary hearing, but the state district court reasonably found as follows:
Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, p. 5; see also Transcript of Proceedings of August 6, 2003, Exhibit 30, pp. 31-36, 49-54.
Moreover, with respect to Sullivan's heroin use, his trial counsel did submit to the sentencing court the report of a doctor who examined Sullivan; the report concerned Sullivan's substance abuse, its effect on his commission of the crimes, and his willingness to seek treatment. Sullivan complains that his counsel did not actually call that doctor to testify at the sentencing, but the state courts reasonably ruled that there was no showing that counsel's strategic decision in that regard was unreasonable, or that there was any reasonable probability that it had any effect on the outcome of the sentencing. Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, pp. 7-8; see also Transcript of Proceedings of August 6, 2003, Exhibit 30, pp. 39-40, 44.
Regarding Sullivan's claim that his counsel failed to adequately investigate the restitution amount, in state court this argument focused on trial counsel's alleged failure to investigate and make use of the insurance company's letter. The state district court, though, reasonably ruled against Sullivan on that claim, pointing out that the letter was not offered as evidence. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, pp. 8-9. Furthermore, Sullivan's trial counsel testified at the evidentiary hearing that he made a strategic decision not to make an issue of the restitution amount. See Transcript of Proceedings of August 6, 2003, Exhibit 30, pp.27-28 ("[I]t's been a longstanding policy of mine, which is shared by many of my colleagues in my office, to not argue restitution in a difficult sentencing such as this case, where I felt it would be — it was going to be difficult to persuade Judge Adams to run any of these terms concurrent.").
As for Sullivan's claim that his trial counsel failed to present mitigating evidence at the sentencing hearing, and did not advise Sullivan of the opportunity to do so, the record of the evidentiary hearing reflects that the state courts reasonably concluded that "[n]o such witnesses testified in the habeas corpus hearing and so the court must find that Sullivan has failed to identity a single person who was willing to say a kind word about him." Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, p. 8; see also Transcript of Proceedings of August 6, 2003, Exhibit 30, pp. 13, 28-29 (trial counsel testified that it was his practice to inform clients about what sort of evidence could be offered at sentencing hearing), and pp. 58, 81-82 (Sullivan testified: "I was so ashamed that I had committed a crime that I didn't want to present any witnesses.").
The state courts' denial of the claims in Ground 5A was not contrary to, or an unreasonable application of United States Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence.
In Ground 5B, Sullivan claims that his right to effective assistance of counsel was violated because of his trial counsel's "[f]ailure to object to testimony of alleged dangerousness at sentencing." Amended Petition, p. 12.
Respondents argue that Ground 5B is unexhausted. Answer, pp. 28-29. The Court, however, finds that Sullivan raised this claim before the Nevada Supreme Court on the appeal in his state habeas action. See Fast Track Statement, Exhibit 36, p. 8. Ground 5B is exhausted.
The respondents also contend that this claim is barred by the procedural default doctrine. Answer, pp. 30-31. However, as is discussed above, this Court has already ruled that the procedural default doctrine does not bar any of Sullivan's claims, and that ruling is the law of the case. See Order entered August 21, 2006, dkt. no. 43, pp. 15-17.
The state district court ruled as follows on this claim:
Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, pp. 6-7. The Nevada Supreme Court affirmed this ruling on its merits (in the alternative to its ruling that Sullivan's petition was untimely), without discussion. See Sullivan, 120 Nev. at 542, 96 P.3d at 765.
To the extent that an objection by trial counsel might have been made on state law grounds, the ruling of the Nevada Supreme Court that the victims' testimony "was properly admitted and any objection would have been overruled," is binding. Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, p. 6. And, as for any possible objection on federal constitutional grounds, this Court has determined that the testimony of the victims did not render Sullivan's trial fundamentally unfair, and that it did not violate Sullivan's federal constitutional right to due process of law. See Discussion, supra, Section IV.B.
The Court, therefore, finds objectively reasonable the conclusions of the state courts, that Sullivan's trial counsel did not perform unreasonably in not objecting to the challenged comments of the victims, and that even if counsel had objected to the challenged comments, there is no reasonable probability that the outcome of the sentencing would have been different.
The respondents contend that this claim is barred by the procedural default doctrine. Answer, pp. 30-31. However, as is discussed above, this Court has already ruled that the procedural default doctrine does not bar any of Sullivan's claims, and that ruling is the law of the case. See Order entered August 21, 2006, dkt. no. 43, pp. 15-17.
The state district court ruled as follows on this claim: Ground 2D was a claim that the plea was based on a guarantee of concurrent sentences. Sullivan's testimony on this point was false. The court finds that no promises were made by defense counsel. The court further finds that even if Sullivan had some belief that concurrent sentences were assured when he entered the courtroom to enter his plea, the court disabused him of any notion that he could be assured of any specific sentence. Thus, the court finds that the plea was voluntary and knowing. The court also notes that a subjective expectation of leniency, not caused by the prosecutor or the court, is not grounds to invalidate a guilty plea. Rouse v. State, 91 Nev. 677, 541 P.2d 643 (1975). Thus, even if Sullivan's testimony were true, the court would not set aside the judgment of conviction.
Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, p. 7. As with Sullivan's other claims of ineffective assistance of counsel, the Nevada Supreme Court affirmed this ruling on its merits (in the alternative to its ruling that Sullivan's petition was untimely), without discussion. See Sullivan, 120 Nev. at 542, 96 P.3d at 765.
Central to the state courts' ruling is the state district court's finding that Sullivan's testimony at the evidentiary hearing was not believable, but his trial counsel's was. That court stated in this regard:
Findings of Fact, Conclusions of Law and Judgment, Exhibit 32, p. 3. And, again, with regard to the particular claim that Sullivan relied upon assurances by his counsel that he would receive concurrent sentences, the state district court stated:
Id. at 7. The state district court's finding regarding the relative credibility of Sullivan and his trial counsel is not unreasonable in light of the evidence. See, e.g., Transcript of Proceedings of August 6, 2003, Exhibit 30, pp. 10-11 (testimony of trial counsel), and pp. 53-56, 58-59 (testimony of Sullivan).
The Court finds objectively reasonable the conclusions of the state courts, that Sullivan's trial counsel did not assure him that he would receive concurrent sentences, and that, therefore, Sullivan has not shown any ineffective assistance of his counsel as alleged in Ground 5C.
The standard for issuance of a certificate of appealability calls for a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). The Supreme Court interpreted 28 U.S.C. §2253(c) as follows:
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir.2000). The Supreme Court further illuminated the standard in Miller-El v. Cockrell, 537 U.S. 322 (2003). The Court stated in that case:
Miller-El, 123 S.Ct. at 1040 (quoting Slack, 529 U.S. at 484).
The court has considered the issues raised by Sullivan, with respect to whether they satisfy the standard for issuance of a certificate of appeal, and the court determines that none do. The court will deny Sullivan a certificate of appealability in all respects.
It is therefore ordered that that petitioner's Amended Petition for Writ of Habeas Corpus (dkt. no. 14) is denied.
It is further ordered that petitioner is denied a certificate of appealability.
It is further ordered that the Clerk shall enter judgment accordingly.
