GLORIA M. NAVARRO, Chief District Judge.
Pending before the Court is the pro se Petition for Writ of Habeas Corpus, (ECF No. 6), filed by Petitioner Bryan Michael Ferguson,
This Court laid out the procedural history of this action on August 25, 2015:
(ECF No. 20 at 1-2.)
When a state court has adjudicated a claim on the merits, the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating the state court ruling; that standard is "difficult to meet" and "demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. Id. at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. Id. at 181-88. The petitioner bears the burden of proof. Id. at 181.
A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. The Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. And "a federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." Id. at 16. A decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.
A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." See, e.g., id. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). When a state court's factual findings based on the record before it are challenged, the "unreasonable determination of fact" clause of 28 U.S.C. § 2254(d)(2) controls, which requires federal courts to be "particularly deferential" to state court factual determinations. See, e.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This standard is not satisfied by a mere showing that the state court finding was "clearly erroneous." Id. at 973. Rather, as the Ninth Circuit explained, AEDPA requires substantially more deference:
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), a state court's factual findings are presumed to be correct and the petitioner must rebut that presumption by "clear and convincing evidence." In this inquiry, federal courts may not look to any factual basis not developed before the state court unless the petitioner both shows that the claim relies on either (a) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" or (b) "a factual predicate that could not have been previously discovered through the exercise of due diligence," and shows that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2).
When a state court summarily rejects a claim, it is the petitioner's burden to show that "there was no reasonable basis for the state court to deny relief." Harrington v. Richter, 562 U.S. 86, 98 (2011).
In Ground 1, Ferguson argues that the trial court violated his "Sixth Amendment . . . right to Confrontation as interpreted in Bruton v. United States, 391 U.S. 123 (1968)" by admitting into evidence "tape recordings of the co-defendants [sic] phone conversation with a [sic] unrelated third party wherein the co-defendant discussed his commission of the crimes charged and involvement of another person as inferred by the use of `we' when referring to the acts which gave rise to the crimes charged." (ECF No. 6 at 3; see also id. at 5 ("It is [Ferguson's] position that the recorded conversation[,] . . . by Monroe's use of the term `we' necessarily implicates [Ferguson] in the crime(s) Monroe is admitting to.").)
In doing so, it noted that Ferguson objected to the following passage:
(ECF No. 16-16 at 3 (as in original).) The record indicates that the phone calls were transcribed and given to the jury, but no transcripts were provided by the State to this Court. (See ECF No. 12-19 at 110; ECF No. 13-3 at 104, 112-13; see also ECF No. 16-15 at 4.) The trial transcripts also show a conversation outside the present of the jury where the issue is discussed. (See ECF No. 13-3 at 104-10.) Based on Ferguson's brief to the Supreme Court of Nevada, it appears that the transcript was included as "Exhibit A." (ECF No. 16-14 at 5.) Without this transcript of the recording as presented to the jury, this Court is left to either rely on incomplete characterizations from counsel—which are insufficient—or blindly follow the Supreme Court of Nevada's factual recitation—which would be an abdication of the federal courts' role in habeas proceedings.
"[I]f the role of a federal habeas court were simply to accept on faith the state court's description of the facts, free from any obligation to review the record on which the state court based its judgment, `there would hardly be a reason to have a federal habeas statute at all.'" Nasby v. McDaniel, 853 F.3d 1049, 1052 (9th Cir. 2017) (citation omitted); see also id. at 1054 ("Regardless of what documents the parties originally submit, it is the district court's independent obligation to obtain the relevant portions of the record."). Even if a petition were likely without merit, that "cannot be said with certainty without a review of the record." Turner v. Chavez, 586 F.2d 111, 112 (9th Cir. 1978). Thus, when the contents of a transcript that were relied upon by the state court whose decision is under review and are "relevant to the [federal court's] adjudication of [the petitioner's] claims," there is "no alternative" but to review the transcripts or conduct a new evidentiary hearing. Nasby, 853 F.3d at 1053 (quoting Jones v. Wood, 114 F.3d 1001, 1008 (9th Cir. 1997)). Therefore, this Court must determine if the transcript of the challenged call that was provided to the jury is "relevant" to its "adjudication" of Ferguson's claim.
As another judge of this court has held, if they are able to decide the merits of a habeas petition by accepting as true all allegations of the losing party, then it may do so. Guardado v. Nev. Attorney Gen., No. 3:10-cv-103, slip op. at 7-11 (D. Nev. Aug. 25, 2017) ("[T]his Court assumes the veracity of the petitioner's allegations. . . . Doing so, this Court finds that [the petitioner] is not entitled to habeas relief, and therefore the proceedings are not `relevant' to its `adjudication' . . . ."). Because this Court is able to resolve the merits of Ferguson's claim without the transcripts that were provided to the jury and reviewed by the Supreme Court of Nevada, those transcripts are not "relevant" in the Nasby sense.
The Supreme Court has "express[ed] no opinion on the admissibility of a confession in which the defendant's name has been [secretly] replaced with a symbol or neutral pronoun." Richardson v. Marsh, 481 U.S. 200, 211 (1987). After Richardson, the Ninth Circuit held that "[t]he admission in a joint trial of a codefendant's confession that is redacted to substitute a neutral pronoun or other general word for the name of the complaining defendant does not violate Bruton so long as the confession does not compel a direct implication of the complaining defendant." United States v. Enriquez-Estrada, 999 F.2d 1355, 1359 (9th Cir. 1993) (quoting United States v. Sears, 663 F.2d 896, 901 (9th Cir. 1981)). Later, the Ninth Circuit recognized that it had to modify that rule in light of an intervening Supreme Court case, Gray v. Maryland, 523 U.S. 185 (1998), such that it cannot be "obvious that an alteration has occurred [to the confession] to protect the identity of a specific person." United States v. Peterson, 140 F.3d 819, 822 (9th Cir. 1998); see Gray, 523 U.S. at 192 ("Redactions that simply replace a name with an obvious blank space or a word such as `deleted' or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result."). Indeed, it has been, after Gray, clearly established by the Supreme Court that the admission of a co-defendant's confession violates the Confrontation Clause if the confession "notif[ies] the jury that a name has been deleted." Greene v. Fisher, 565 U.S. 34, 43 (2011) (quoting Gray, 523 U.S. at 195).
Based on the Supreme Court of Nevada's unchallenged recitation of the transcript, it was obvious to the jury that a modification to the confession had been made to exclude reference to someone: "I told [neutral pronoun], I said. . . ." (ECF No. 16-16 at 3 (as in original).) Ferguson, in his reply, provided the relevant portions of the original, undoctored, transcripts calls. (ECF No. 27 at 15.) They show that the calls originally read, "I told JB, I said . . . ."—JB is a nickname for Ferguson. (Id. at 15; see id. at 18.) Moreover, Monroe's statement amounted to a complete confession:
(Id. at 15) (last alteration in original). Thus, Monroe told the jury that "[neutral pronoun]" stole the items that the police found in the car. This would seem to violate Gray and Greene.
However, there is another reason—unexplored by the Supreme Court of Nevada—that this could not violate Gray, Greene, or the Confrontation Clause: Monroe's statements were not testimonial, and the Confrontation Clause applies only to testimonial evidence. See Crawford v. Washington, 541 U.S. 36, 68 (2004); United States v. Larson, 495 F.3d 1094, 1099 n.4 (9th Cir. 2007) (en banc); see also Soto v. Grounds, No. C-13-5931-EMC, 2015 WL 1349662, at *14 (N.D. Cal. Mar. 25, 2015) ("A de novo review is a simple matter here because there is a bright line rule: the Confrontation Clause does not apply to nontestimonial hearsay."). While Crawford did not speak to "whether and when statements made to someone other than law enforcement personnel are `testimonial,'" Davis v. Washington, 547 U.S. 813, 823 n.2 (2006), it nonetheless noted that the Confrontation Clause has no issue with the admission of "an off-hand, overheard remark," even if the listener is a police officer. Crawford, 541 U.S. at 51. Indeed, a statement is "testimonial" only if the "primary purpose" of the statement, to an objective observer, was to create an "out-of-court substitute for trial testimony." Michigan v. Bryant, 562 U.S. 344, 358 (2011).
Monroe's recorded jailhouse phones calls to his friend were not testimonial. The Third Circuit has addressed the exact issue before this Court, and, with "little hesitation," held the overheard jailhouse phone calls by a co-defendant were not testimony. See United States v. Berrios, 676 F.3d 118, 127-28 (3d Cir. 2012); see also Desai v. Booker, 732 F.3d 628, 630 (6th Cir. 2013) ("[T]he Confrontation Clause no longer applie[s] to non-testimonial hearsay such as the friend-to-friend confession. . . ."); United States v. Dale, 614 F.3d 942, 956 (8th Cir. 2010) (holding that a co-defendant's statement to fellow prisoner who was wearing a wire was not testimonial). Indeed, this case is nearly identical to Saechao v. Oregon, where the Ninth Circuit rejected a Confrontation Clause challenge to a jailhouse phone call. 249 Fed. App'x 678, 679 (9th Cir. 2007); see also United States v. Gouveia, 468 Fed. App'x 793, 796 (9th Cir. 2012) ("Since Hernandez did not know his statements were being recorded by law enforcement and had no reason to expect that they would be used at his and Gouveia's prosecution, his statements are not testimonial. . . ."). Moreover, the Supreme Court included as examples of statements that "were clearly nontestimonial," a statement "made unwittingly to a Government information" and "statements from one prisoner to another." Davis, 547 U.S. at 825. There is no evidence here that Monroe was trying to implicate Ferguson or an intent for the statement to later be used at trial. Therefore, on de novo review, Ferguson's Confrontation Clause challenge fails.
And even if the Confrontation Clause challenge were meritorious, this Court will not grant the petition if the State carries its burden of proving that the violation was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 253-54 (1969). Whether an error is harmless depends on several factors, including "whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination, and, of course, the overall strength of the prosecution's case." Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Unless a reviewing court "can confidently say that, on the whole record, the verdict would have been the same without the Bruton error," then the error is not harmless beyond a reasonable doubt. Peterson, 140 F.3d at 822; see also United States v. Parks, 285 F.3d 1133, 1140 (9th Cir. 2002) ("After an exhaustive review of the record we conclude that there is substantial evidence of [the defendant's] guilt, to the end that we are persuaded beyond peradventure that any error was harmless beyond a reasonable doubt.").
Ferguson's core contention at trial was that he was simply driving around with Monroe for thirty minutes before they were arrested, and that he was not aware that Monroe had just burgled the crystal store. (See ECF No. 27 at 52-53). When Ferguson was patted down, he had bracelets from the crystal store in his pocket. (ECF No. 13-3 at 137.) His contention was that he just happened to pick them up from the car when he got in. (See ECF No. 27 at 52-53).
But that does nothing to explain how, after Monroe picked Ferguson up, two interior motion detectors and the front door alarm were tripped at 2:15 am at the dentist office; another perimeter door, likely an exit door, was tripped at 2:17 am. (See ECF No. 13-3 at 39-41). When the police arrived, the dentist office had all of its doors locked and nothing was out of place. (ECF No. 13-3 at 18.) Minus nothing being missing, this was quite similar to the crystal store where an alarm was tripped for the front door at 1:14 am, the motion detector inside at 1:16 am, and the backdoor at 1:17 am. (Id. at 34-35.) The doors were locked when the police arrived, as well. (Id. at 56.)
Moreover, an eyewitness testified that, around 2:00am, a white minivan circled the dentist office two times, and the witness thought that something was amiss, but didn't mention it to his girlfriend with whom he was on the phone. (Id. at 65-67.) After the van waited for about half a minute, it pulled up right in front of the dentist office. (Id. at 67-68.) "A couple guys got out and they went right up to the dentist's office door and right in faster than I could stick a key in there and turn it." (Id. at 68.) Both were wearing hoods, and one had shoulder length blonde hair. (Id. at 69.) At that point, he decided to go into the bar "for [his] own security" and told the bartender that someone was breaking into the dentist office. (Id. at 70-71.)
The police arrived almost immediately, the white minivan was seen speeding away from the scene, and both Ferguson and Monroe were found in the car with the stolen goods from the previous robbery. See infra Ground 2-1. In light of this overwhelming evidence of Ferguson's guilt, any error was harmless beyond a reasonable doubt.
Ground 1 provides no basis for habeas relief.
In Ground 2, Ferguson argues that his Sixth Amendment right to effective assistance of counsel was violated for five reasons. (ECF No. 6 at 7.)
To succeed on an ineffective assistance of counsel claim, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Courts evaluate counsel's performance from counsel's perspective at the time and begin with a strong presumption that counsel's conduct well within the wide range of reasonable conduct. See, e.g., Beardslee v. Woodford, 358 F.3d 560, 569 (9th Cir. 2004). When a state court has reviewed a Strickland claim, a federal court's habeas review is "doubly deferential"—the reviewing court must take a "highly deferential" look at counsel's performance through the also "highly deferential" lens of § 2254(d). Pinholster, 563 U.S. at 190, 202.
Ferguson argues that trial counsel was ineffective for "failing to file a motion to suppress evidence obtained as a result of an illegal search and seizure traffic stop." (ECF No. 6 at 7.) To demonstrate prejudice when a Strickland claim is based on the failure to litigate a Fourth Amendment claim, a petition must "prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The Supreme Court of Nevada denied this claim because it held that Ferguson failed to demonstrate either deficiency or prejudice. (ECF No. 18-15 at 2.)
In the early morning hours of September 25, 2006, Officer Salisburg was dispatched to respond to a burglary alarm that was going off at Anku Crystal Palace. (ECF No. 11-2 at 82.) While en route, he received another call that there was a burglary in process at a dentist's office located in a strip mall approximately a mile away from Anku Crystal Palace. (Id.) Less than a minute later, he arrived at the dentist's office. (Id. at 83.) On his approach to the rural strip mall that he described as rarely frequented that late at night, he saw a white minivan, parked directly in front of the dentist office, start backing up away from the office—it was the only vehicle in the area. (Id. at 83-85.) Salisburg started "driving through the parking lot not catching up to it like it's speeding or fleeing." (Id. at 86.) His partner—in another car—caught up to the minivan on the road and pulled it over. (Id.) He noticed "a glass crystalline object inside [the van] and it looked really nice and it just immediately struck me as odd of why something like that was on the floorboard of the vehicle." (Id. at 90.) After Salisburg made the connection between the crystalline object and the nearby Anku Crystal Palace burglary alarm, Ferguson and Monroe were arrested. (See id. at 93.)
The initial stop was constitutionally proper, as an investigatory stop, "if the officer's action is supported by reasonable suspicion to believe that criminal activity `may be afoot.'" United States v. Arvizu, 534 U.S. 266, 273 (2002); see also United States v. Cortez, 449 U.S. 411. 417 (1983) ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."). Reasonable suspicion is a "somewhat abstract" and "elusive concept," but it must be analyzed looking at the totality of the circumstances, allowing officers to draw logical inferences from his observations—a mere "hunch" in insufficient, but on the other hand, a reasonable suspicion still "falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 273-74 (citation omitted).
The officers had reasonable suspicion that crime was afoot. A burglary alarm had just been received and the only car that was parked in the area in a strip mall in the middle of the night was parked directly in front of the store that had an alarm going off, and it started backing away as the officers were approaching—and speeding away when the officers arrived. Ferguson argues that, because it turned out that no burglary occurred at the dentist office, the officers did not have reasonable suspicion to pull the minivan over. (ECF No. 6 at 15.) But we look at what officers know at the time, not what officers find out after the fact. See Arvizu, 534 U.S. at 273-74. Moreover, as explained above, a burglary still occurred—it's just that nothing was stolen.
Ferguson also argues that the motion to suppress would have been granted because of a "lack of nexus between Fergason as a passenger in the vehicle and the alleged stole property requisite to create reasonable suspicion." (ECF No. 6 at 15.) This would not have changed the reasonable suspicion calculus, and there is no reason that the evidence would have been excluded.
Because the motion to suppress would have been fruitless, Ferguson cannot demonstrate prejudice from the failure to file it—nor deficiency for a failure to do so. The Supreme Court of Nevada's rejection of Ferguson's claim did not involve an unreasonable determination of fact, nor was it contrary to or an unreasonable application of, clearly established U.S. Supreme Court case law.
Ground 2-1 provides no basis for habeas relief.
Ferguson argues that trial counsel was ineffective for "failing to seek severance of Fergason from his co-defendant." (ECF No. 6 at 7, 16.) Nevada law provides that a grant a severance if a defendant would be "prejudiced" by a joinder. Nev. Rev. Stat. § 174.165. Severance is applicable "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Chartier v. State, 191 P.3d 1182, 1185 (Nev. 2008) (citation omitted). In other words, Ferguson has to show a reasonable probability that the joint trial was "manifestly prejudicial." Bruno v. State, 281 P.3d 1157, 1159 (Nev. 2009).
To do so, Ferguson points to the fact that "Monroe had conceived a murder-for-hire plot against the trial judge presiding over this matter. The knowledge of this murder-for-hire plot was very highly publicized in the media." (ECF No. 6 at 19.) The Supreme Court of Nevada denied this claim because it held that Ferguson failed to demonstrate either deficiency or prejudice. (ECF No. 18-15 at 3.) It noted: "[T]he trial court excluded all evidence of the murder-for-hire plot. . . . Further, [Ferguson] failed to present any evidence that the jurors had knowledge of the plot. . . ." (Id.) Indeed, during voir dire, none of the jurors indicated that they had heard about the case or heard of Ferguson or Monroe. (ECF No. 17-24 at 30.)
Because the motion to sever would have been fruitless, Ferguson cannot demonstrate prejudice from the failure to file it—nor deficiency for a failure to do so. The Supreme Court of Nevada's rejection of Ferguson's claim did not involve an unreasonable determination of fact, nor was it contrary to or an unreasonable application of, clearly established U.S. Supreme Court case law.
Ground 2-2 provides no basis for habeas relief.
Ferguson argues that trial counsel was ineffective for "failing to seek severance based upon intent to admit phone calls between Monroe and third parties which incriminated Ferguson." (ECF No. 6 at 23.) The Supreme Court of Nevada rejected this claim because Ferguson failed to demonstrate either deficiency or prejudice. (ECF No. 18-15 at 3.) It noted that, "[d]espite bearing the burden of proof . . ., [Ferguson] failed to identify any portion of the conversation that incriminated him and thus failed to demonstrate a reasonable probability of a different outcome at trial had a motion to sever been filed and granted." (Id.) His federal petition does no better, and therefore he has failed to carry his burden of proof on either deficiency or prejudice. Indeed, he fails to demonstrate deficiency because counsel testified that he made a strategic decision to keep Ferguson in the same trial with Monroe because the disparities in the amount of evidence might help Ferguson come off as less culpable. (See ECF No. 17-24 at 6-11, 26-27.) Morever, the transcripts from the phone calls to which Ferguson was not a party do not name Ferguson, except for the one that was redacted. (See ECF No. 27 at 11-43.) Simply having one's co-defendant seemingly confess to the crime and mention that someone else did the crime with him is not so prejudicial as to "prevent the jury from making a reliable judgment about guilt or innocence." Chartier, 191 P.3d at 1185. And as in Ground 2-3, above, he cannot demonstrate a reasonable probability of a different outcome at trial in light of the overwhelming evidence against him. See supra Ground 1.
The Supreme Court of Nevada's rejection of Ferguson's claim did not involve an unreasonable determination of fact, nor was it contrary to or an unreasonable application of, clearly established U.S. Supreme Court case law.
Ground 2-3 provides no basis for habeas relief.
Ferguson argues that trial counsel was ineffective for "failing to communicate with Fergason as to defending his case or conducting any investigation." (ECF No. 6 at 27.) The Supreme Court of Nevada rejected this claim because Ferguson failed to demonstrate either deficiency or prejudice. (ECF No. 18-15 at 3.) It noted that Ferguson failed "to present any evidence of what better communication or a more thorough investigation would have revealed." (Id.)
For an ineffective assistance of counsel claim based on a failure to investigate to succeed, the defendant must, beyond satisfying the doubly deferential Strickland analysis applicable on federal habeas review, point to the evidence that would have been discovered with more than a mere hunch; speculation is insufficient. See Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000); Hamilton v. Vasquez, 17 F.3d 1149, 1157 (9th Cir. 1994). In his federal petition, Ferguson says only that doing so "would have helped his defense." (ECF No. 6 at 29.) That conclusory allegation is insufficient, and therefore Ferguson has failed to carry his burden as to prejudice. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989); United States v. Schaflander, 743 F.2d 714, 721-22 (9th Cir. 1984).
The Supreme Court of Nevada's rejection of Ferguson's claim did not involve an unreasonable determination of fact, nor was it contrary to or an unreasonable application of, clearly established U.S. Supreme Court case law.
Ground 2-4 provides no basis for habeas relief.
Ferguson argues that trial counsel was ineffective for "failing to assure [Ferguson] received the good time credits to which he was entitled." (Id. at 30.) Ferguson argues that because he was "incarcerated during the proceedings in this matter and at the time of sentencing[,] [he] was entitled to 238 days as a credit of time served. [Counsel] failed to obtained this credit for him and was ineffective for not doing so." (Id. at 31.) Ferguson argues that he was on probation when the burglaries occurred on September 25, 2006; his probation was then revoked on April 11, 2007. He was paroled but then immediately re-arrested on September 10, 2007, for the burglaries, and he remained incarcerated on these charges until the sentencing on May 5, 2008—238 days later. (See id. at 31-32.) Under Nevada law, a defendant may have be entitled to credit time served unless the defendant was
Nev. Rev. Stat. § 176.055(b), (b)(2).
Relying on this exception, the Supreme Court of Nevada rejected Ferguson's claim because Ferguson failed to demonstrate either deficiency or prejudice. (ECF No. 18-15 at 4.) It noted that, "[c]ontrary to [Ferguson's] implicit argument, this section applies regardless of whether he was confined pursuant to the prior sentence or pursuant to the subsequent offense." (Id.)" [I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, in light of the Supreme Court of Nevada's interpretation of Nevada state law, Ferguson cannot demonstrate deficiency or prejudice.
The Supreme Court of Nevada's rejection of Ferguson's claim did not involve an unreasonable determination of fact, nor was it contrary to or an unreasonable application of, clearly established U.S. Supreme Court case law.
Ground 2-5 provides no basis for habeas relief.
Because reasonable jurists would not find this decision to be debatable or incorrect,
