Order Denying Petition, Declining to Issue a Certificate of Appealability, and Closing Case

JENNIFER A. DORSEY, District Judge.

Nevada state-prison inmate Joel Cardenas brings this § 2254 petition to challenge his Nevada state-court conviction and sentence. Having reviewed Cardenas's petition and respondents' answer, I find that Cardenas is not entitled to federal habeas relief, so I deny his petition and decline to issue a certificate of appealability.

Background1

Cardenas was charged with sexual assault in Nevada's Fifth Judicial District Court in Case No. CR5364. Cardenas failed to appear for trial in that case, but was later discovered and returned to Nye County, where he was charged with failure to appear, Case No. CR6248. In March 2011, Cardenas was first tried and found guilty of sexual assault. Days after that trial ended, Cardenas was tried and found guilty on the failure-to-appear charge.

Two months later, the trial court held a single sentencing hearing to address both cases. The court adjudicated Cardenas a habitual criminal under NRS § 207.010 based, in part, on the sexual-assault conviction. The trial court stated that the sentence for failure to appear would be served consecutively to the sentence for sexual assault, gave Cardenas 499 days of credit for time served for the sexual-assault sentence, and declined to award any credit for time served for the consecutive failure-to-appear sentence. Though the trial court orally announced that the custodial sentences would be served consecutively, this information was omitted from the judgment of conviction.

Cardenas appealed the judgment and sentence and the Nevada Supreme Court granted relief on one issue: it held that Cardenas could not be adjudicated as a habitual criminal for the failure-to-appear conviction because he committed that offense two years before a judgment of conviction was entered for his second felony conviction and remanded the case to the district court.2 The state district court entered an amended judgment of conviction that removed the habitual-criminal adjudication and added that the sentence for failure to appear would run consecutively to the sentence for sexual assault.

Discussion

A. Standard for habeas relief under 28 U.S.C. § 2254(d)

A federal court may not grant an application for a writ of habeas corpus on behalf of a person in state custody on any claim that was adjudicated on the merits in state court unless the state-court decision (1) was contrary to, or involved an unreasonable application of, clearly established federal law or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding.3 In making this determination, federal courts look to the last reasoned state-court decision.4 "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."5 To the extent no reasoned opinion exists, courts must independently review the record to determine whether the state court clearly erred in its application of controlling federal law or whether the state court's decision was objectively unreasonable.6

B. Ineffective assistance of counsel under 28 U.S.C. § 2254(d)

In Strickland v. Washington, the United States Supreme Court established a two-prong test for ineffective-assistance-of-counsel claims.7 A petitioner must show (1) that the defense attorney's representation "fell below an objective standard of reasonableness" and (2) that the attorney's deficient performance prejudiced the defendant so severely that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."8 If a state court has adjudicated a claim of ineffective assistance of counsel, federal habeas courts ask only "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."9 Martin has not met this burden for any of his remaining claims.

C. Cardenas's ineffective-assistance claims fail.

In ground one, Cardenas argues that, at his re-sentencing hearing for the failure-to-appear charge, counsel failed to inform the court that Cardenas should receive 890 days of credit for time served, which would be 491 days for time served before the original sentencing plus 399 days for time served between the original sentencing and the re-sentencing. In ground two, Cardenas argues that counsel failed to request a new pre-sentence investigation report (PSR) showing that Cardenas should receive the 890 days of credit for time served.

The Nevada Supreme Court rejected these claims on appeal in Cardenas's state habeas action, finding that Cardenas failed to show that his counsel's performance was deficient or to show prejudice. The Court held that, because a PSR was prepared for the sexual-assault case, a second report was not required to be prepared for the failure-to-appear case.10 Further, Cardenas did not demonstrate how having a second PSR prepared would have changed the outcome of the sentencing hearing.

The Court next held that counsel was not ineffective for failing to inform the district court at re-sentencing that his sentences were to run concurrently because, at the 2011 sentencing hearing, the district court orally sentenced Cardenas to consecutive sentences, and the judgment's failure to include this qualification was a clerical error. Additionally, because Cardenas's credits for time served were applied to his sexual-assault case, he was not also entitled to earn those credits toward his sentence in the failure-to-appear case.11

Both of Cardenas's claims rest on the incorrect assumption that his sentences were originally meant to be served concurrently. They were not. The state district court explicitly stated at Cardenas's original sentencing hearing that the failure-to-appear sentence was to run consecutively to the sexual-assault sentence. The Nevada Supreme Court reasonably found that the failure-to-appear judgment contained nothing more than a correctable clerical error. Additionally, state law is clear that credit for time served in pre-sentence confinement is applied to only the first of consecutive sentences, so Cardenas is not entitled to credits for time served in the failure-to-appear case. The Nevada Supreme Court correctly applied Strickland in denying these claims, there is a reasonable argument that counsel satisfied that standard, and Cardenas is not entitled to federal habeas relief on either ground.

D. I decline to issue a certificate of appealability

To obtain a certificate of appealability, a petitioner must make "a substantial showing of a denial of a constitutional right"12 by showing that "reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong."13 To meet this threshold, the petitioner must demonstrate that the issues are debatable among jurists of reason, that a court could resolve the issues differently, or that the questions are adequate to deserve encouragement to proceed further.14 Because no reasonable jurist would find my conclusion that Cardenas has failed to show that his counsel was constitutionally ineffective debatable or wrong, I decline to issue Cardenas a certificate of appealability.

Conclusion

Accordingly, IT IS HEREBY ORDERED that Cardenas's petition for a writ of habeas corpus [ECF No. 4] is DENIED, and I decline to issue a certificate of appealability. The Clerk of Court is directed to enter judgment for respondents and against Cardenas and to CLOSE THIS CASE.