MIRANDA M. DU, District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner. This matter comes before the Court on the remaining grounds of the petition.
Following a jury trial, petitioner was convicted of one count of possession of stolen property and one count of possession of burglary tools. (Exh. 21.)
On January 12, 2011, petitioner filed a post-conviction habeas petition in the state district court. (Exh. 29.) On April 22, 2011, the state district court entered an order denying the habeas petition. (Exh. 30.) Petitioner appealed the denial of his state habeas petition. (Exh. 32.) On March 30, 2012, the Nevada Supreme Court issued an order affirming the denial of the state habeas petition. (Exh. 33.) Petitioner sought rehearing, which was summarily denied by the Nevada Supreme Court. (Exh. 34.) Remittitur issued on June 4, 2012. (Exh. 35.)
Petitioner dispatched his federal habeas petition to this Court on June 8, 2012. (Dkt. no. 6.) Ground 1 of the petition raises several claims of ineffective assistance of trial counsel. Ground 2 raises several claims of ineffective assistance of appellate counsel. Ground 3 raises several instances of prosecutorial misconduct. Ground 4 alleges that petitioner's conviction and sentence are unconstitutional because the trial court abused its discretion in determining pretrial writs and motions. Ground 5 contains assorted arguments, including a purported claim under Martinez v. Ryan, 132 S.Ct. 1309 (2012), as well as a claim of actual innocence. (Dkt. no. 6.)
Respondents moved to dismiss certain grounds of the petition. (Dkt. no. 8.) By order filed July 23, 2013, this Court dismissed with prejudice Grounds 3 and 4 as procedurally barred, and Ground 5 for failure to state a cognizable claim. (Dkt. no. 21.) The Court directed respondents to file an answer to Grounds 1 and 2 of the petition. (Id.) On July 31, 2013, petitioner filed a motion for leave to amend the petition. (Dkt. no. 23.) On September 11, 2013, petitioner filed an amended petition. (Dkt. no. 29.) Respondents opposed the motion to amend. (Dkt. no. 24.) On March 19, 2014, the Court denied petitioner's motion to amend and ordered the amended petition stricken. (Dkt. no. 35.) The Court again directed respondents to file an answer to Grounds 1 and 2 of the original petition. (Id.) On May 2, 2014, respondents filed an answer. (Dkt. no. 36.) On June 25, 2014, petitioner filed a traverse (reply). (Dkt. no. 38.) The Court now considers the merits of Grounds 1 and 2 of the original petition.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition:
The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). 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, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). The formidable standard set forth in section 2254(d) reflects the view that habeas corpus is "`a guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
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 v. Andrade, 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 merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). In determining whether a state court decision is contrary to, or an unreasonable application of federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9
In a federal habeas proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the burden set in § 2254(d) and (e) on the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170, 185 (2011).
Petitioner alleges that his trial counsel was ineffective in several aspects, depriving him of his Sixth Amendment right to the effective assistance of counsel. (Dkt. no. 6, at 3-7). The Nevada Supreme Court considered and rejected each of petitioner's sub-claims asserted within Ground 1 of the federal petition, as summarized below.
Petitioner alleges that his trial counsel was ineffective for failing to utilize exculpatory evidence provided as part of discovery, generally regarding differing reports of the quality of the stolen wire found in petitioner's possession. The Nevada Supreme Court rejected petitioner's claim, as follows:
(Exh. 33 at 1-2.)
Petitioner claims that trial counsel was ineffective for failing to attack the state's valuation of the stolen wire, that is, the difference between replacement cost and fair market value. The Nevada Supreme Court rejected this claim:
(Exh. 33 at 2-3.)
Petitioner alleges that trial counsel was ineffective for failing to utilize witness Richard Backas. The Nevada Supreme Court rejected this claim, as follows:
(Exh. 33 at 3).
Petitioner alleges that trial counsel was ineffective for failing to object to the admission of non-qualifying prior convictions to support his habitual criminal adjudication. The Nevada Supreme Court considered and rejected petitioner's claim:
(Exh. 33 at 3-4.)
Petitioner claims that trial counsel was ineffective for failing to move for a directed verdict at the close of the State's case. The Nevada Supreme Court rejected this claim:
(Exh. 33 at 4.)
Ineffective assistance of counsel claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective assistance of counsel has the burden of demonstrating that (1) counsel's performance was unreasonably deficient, and (2) that the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362, 390-391 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is "probability sufficient to undermine confidence in the outcome." Id. Additionally, any review of the attorney's performance must be "highly deferential" and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner's burden to overcome the presumption that counsel's actions might be considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient performance of counsel resulting in prejudice, "with performance being measured against an `objective standard of reasonableness,' . . . `under prevailing professional norms.'" Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quotations omitted). If the state court has already rejected an ineffective assistance claim, a federal habeas court may only grant relief if that decision was contrary to, or an unreasonable application of the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
The United States Supreme Court has described federal review of a state supreme court's decision on a claim of ineffective assistance of counsel as "doubly deferential." Cullen v. Pinholster, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 112-113 (2009)). In Cullen v. Pinholster, the Supreme Court emphasized that: "We take a `highly deferential' look at counsel's performance . . . . through the `deferential lens of § 2254(d).'" Id. (internal citations omitted). Moreover, federal habeas review of an ineffective assistance of counsel claim is limited to the record before the state court that adjudicated the claim on the merits. Id. at Cullen v. Pinholster, 131 S.Ct. at 180-185. "A court considering a claim of ineffective assistance of counsel must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104, (2011) (quoting Strickland, 466 U.S. at 689). "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Id. (internal quotations and citations omitted).
The state court's factual findings, as found within the Nevada Supreme Court's decisions discussed above, are presumed correct. 28 U.S.C. § 2254(e)(1). As to each sub-claim within Ground 1, petitioner has failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced under Strickland. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's rulings were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that the rulings were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court denies habeas relief as to all sub-claims within Ground 1.
Petitioner alleges that his appellate counsel was ineffective during the direct appeal, depriving him of his Sixth Amendment right to the effective assistance of counsel. (Dkt. no. 6 at 9-15.) The Nevada Supreme Court considered and rejected the claims asserted in Ground 2 of the federal petition, as summarized below.
Petitioner asserts that appellate counsel was ineffective for failing to raise the issue that detective Reisselmann violated his constitutional rights by failing to preserve the stolen wire. The Nevada Supreme Court considered and rejected this claim, as follows:
(Exh. 33 at 5).
Petitioner alleges that appellate counsel was ineffective for failing to raise the issue that the "fair market" value standard was met. The Nevada Supreme Court rejected this claim: "Appellant failed to demonstrate that he was prejudiced. As explained above, appellant failed to show any reasonable probability that the value of the wire was less than $250." (Exh. 33 at 5.)
Petitioner claims that appellate counsel failed to respond to an erroneous statement in the State's appeal briefing regarding the street value of copper wire. The Nevada Supreme Court rejected this claim:
(Exh. 33 at 5-6.)
Petitioner asserts that appellate counsel failed to address a state misrepresentation on direct appeal concerning a sustained objection at trial. The Nevada Supreme rejected this claim:
(Exh. 33 at 6.)
Petitioner claims that appellate counsel was ineffective for failing to argue on direct appeal that the trial court abused its discretion by denying his pretrial motion and pretrial habeas petition. The Nevada Supreme Court rejected this claim:
(Exh. 33 at 6-7.)
Petitioner argues that appellate counsel "did not put any real thought or effort into the appeal" arguing that there was a lack of specific analysis. The Nevada Supreme Court rejected this claims as follows:
(Exh. 33 at 7.)
Petitioner alleges that appellate counsel was ineffective for failing to recognize that the sentencing judge failed to adjudicate him prior to sentencing. The Nevada Supreme Court rejected the claim, ruling there was neither deficiency nor prejudice because the judgment of conviction contained the appropriate adjudication. (Exh. 33 at 7.)
Petitioner claims that appellate counsel was ineffective for failing to raise the issue that the burglary tools were not provided to defense counsel until close to trial. Petitioner claims that appellate counsel was ineffective for failing to object to the use of a booking photo. The Nevada Supreme Court rejected both claims, as follows:
(Exh. 33 at 7-8.) (internal citations omitted).
The Strickland standard also applies to claims of ineffective appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). Appellate counsel has no constitutional duty to raise every non-frivolous issue requested by the client. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). To state a claim of ineffective assistance of appellate counsel, a petitioner must demonstrate: (1) that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) that the resulting prejudice was such that the omitted issue would have a reasonable probability of success on appeal. Id. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Id. at 751-52. Petitioner must show that his counsel unreasonably failed to discover and file nonfrivolous issues. Delgado v. Lewis, 223 F.3d 976, 980 (9
The state court's factual findings, as found within the Nevada Supreme Court's decisions discussed above, are presumed correct. 28 U.S.C. § 2254(e)(1). As to each sub-claim within Ground 2, petitioner has failed to demonstrate that his appellate counsel's performance was deficient in that it fell below an objective standard of reasonableness. Petitioner also failed to show prejudice. Specifically, petitioner failed to show that the issues he alleges were omitted from the direct appeal would have a reasonable probability of success. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's rulings were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that the rulings were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court denies habeas relief as to all sub-claims alleging the ineffective assistance of appellate counsel within Ground 2.
"Procedural default" refers to the situation where a petitioner in fact presented a claim to the state courts but the state courts disposed of the claim on procedural grounds, instead of on the merits. A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). In Ground 2, Part C of the federal petition, petitioner asserts that the trial court violated his due process rights by adjudicating him as a habitual criminal. (Dkt. no. 6 at 14-15.) Petitioner raised this same issue for the first time in his post-conviction state habeas petition and appeal from the denial of the same. (Exh. 29 at 8H-8J; Exhs. 30-32). On appeal from the denial of petitioner's post-conviction state habeas petition, the Nevada Supreme Court found this claim, along with two others, to be procedurally defaulted. The Nevada Supreme Court cited NRS § 34.810(1)(b) and found:
(Exh. 33 at 8.) The Ninth Circuit Court of Appeals has held that, at least in non-capital cases, application of the procedural bar at issue in this case — NRS § 34.810 — is an independent and adequate state ground. Vang v. Nevada, 329 F.3d 1069, 1073-75 (9
To demonstrate cause to excuse a procedural default, the petitioner must "show that some objective factor external to the defense impeded" his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). If the petitioner fails to show cause, the court need not consider whether the petitioner suffered actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Roberts v. Arave, 847 F.2d 528, 530 n.3 (9th Cir. 1988).
In this case, petitioner has not asserted any reason for his failure to properly raise the procedurally defaulted claim that the trial court violated his due process rights by adjudicating him as a habitual criminal. Ground 2, Part C of the federal petition was procedurally defaulted in state court, and petitioner has not demonstrated cause and prejudice to excuse the default. As such, Ground 2, Part C of the federal habeas petition is subject to dismissal with prejudice on this basis.
Even if the claim asserted in Ground 2, Part C were not procedurally barred, the claim lacks merit. Petitioner complains that the sentencing court did not make a "just and proper" sentencing determination. Nevada law does not require the sentencing court to "utter specific phrases" in making an adjudication of habitual criminality. O'Neill v. State, 123 Nev. 9, 16, 153 P.3d 38, 43 (2007). Rather, the "sole issue . . . is whether the sentencing court actually exercised its discretion." Id. (emphasis added). In the instant case, the sentencing judge clearly expressed his intent to exercise discretion, stating:
(Supp. Index at Exh. 3, Sentencing Transcript at 7.) On direct appeal, when petitioner argued that the district court abused its discretion by imposing a sentence that constitutes cruel and unusual punishment, the Nevada Supreme Court rejected that argument. (Exh. 26 at 3-4.) The Nevada Supreme Court ruled that the habitual criminal adjudication was appropriate as being within statutory parameters, not an abuse of discretion, and not unconstitutional. (Id. at 4.) This Court denies habeas relief as to petitioner's claim in Ground 2, Part C of the federal petition.
District courts are required to rule on the certificate of appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for certificate of appealability to be filed. Rule 11(a). In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9
It is therefore ordered that the petition for a writ of habeas corpus is denied.
It is further ordered that petitioner is denied a certificate of appealability.
It is further ordered that the Clerk of Court shall enter judgment accordingly.
