MIRANDA M. DU, District Judge.
This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Daniel G. Sandoval, a Nevada prisoner.
In 2006, Sandoval was convicted, pursuant to a guilty plea, of battery with intent to commit sexual assault on a child under fourteen and willfully endangering a child as a result of child abuse. Sandoval was sentenced to life in prison with parole eligibility beginning after five years plus a consecutive term of 28-72 months.
On March 6, 2008, Sandoval's convictions were affirmed on direct appeal by the Nevada Supreme Court. Sandoval filed a federal habeas petition which was dismissed on procedural grounds. USDC Case No. 3:09-cv-00020-HDM-RAM. He then filed a state habeas petition. The state district court held an evidentiary hearing on April 30, 2010, and subsequently denied the petition on its merits. On September 14, 2011, the Nevada Supreme Court affirmed the denial of that petition.
On November 3, 2011, this Court received the federal habeas petition that initiated this action. After appointment of counsel, Sandoval filed a first amended petition on January 25, 2012. That was followed by a second amended petition filed on March 5, 2012.
Pursuant to respondents' motion to dismiss, this Court concluded that Ground Two of the second amended petition was unexhausted. (Dkt. no. 37.) Sandoval elected to suffer dismissal of Ground Two without prejudice. (Dkt. nos. 38-40.)
The remaining claims in the petition have been fully briefed and are now ready for a disposition on the merits.
This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
28 U.S.C. § 2254(d).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' and `demands that statecourt decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "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 emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); 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 factual findings are presumed to be correct unless rebutted by the petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398. In Pinholster, the Court reasoned that the "backwardlooking language" present in § 2254(d)(1) "requires an examination of the state-court decision at the time it was made," and, therefore, the record under review must be "limited to the record in existence at that same time, i.e., the record before the state court." Id.
In Ground One, Sandoval claims that he was deprived of his constitutional right to effective assistance of counsel because his counsel (1) used coercive tactics to obtain his guilty plea, (2) failed to investigate and interview potential witnesses, and (3) failed to insure that an interpreter was available at all times when communicating with him.
To demonstrate ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, a convicted defendant must show that 1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms in light of all the circumstances of the particular case; and 2) unless prejudice is presumed, it is reasonably probable that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). A habeas petitioner may attack the voluntary and intelligent character of a guilty plea by showing that he received ineffective assistance from counsel in connection with the entry of the plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). To demonstrate ineffective assistance of counsel in the context of a challenge to a guilty plea, a petitioner must show both that counsel's advice fell below an objective standard of reasonableness as well as a "reasonable probability" that, but for counsel's errors, the petitioner would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (holding that the two-part Strickland test applies to challenges to guilty pleas based on the ineffective assistance of counsel).
Sandoval alleges that defense counsel, Karla Butko, led him to believe that if he did not enter a guilty plea, the State would pursue a murder charge against him in relation to the accidental death of his son
In Sandoval's first state post-conviction proceeding, the state district court addressed this clam as follows:
(Dkt. no. 17 at 4.)
On appeal from that decision, the Nevada Supreme Court adjudicated this claim as follows:
(Dkt. no. 17-13 at 2-3.)
Although the Nevada Supreme Court did not cite specifically to federal law, the standards the court imposed were not "contrary to" clearly established Supreme Court law for the purposes § 2254(d)(1). See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (holding that state court is not required to cite Supreme Court cases, or even be aware of them, to avoid its decision being "contrary to" Supreme Court precedent). Moreover, the court's decision was not an unreasonable application of federal law or based on an unreasonable determination of the facts.
Sandoval has not rebutted, with clear and convincing evidence, the state court's findings with respect to his failure to prove counsel threatened him. He argues, however, that the inquiry needs to extend into whether he subjectively believed the threat existed. In this regard, he notes that testimony at the evidentiary hearing established that Butko had discussed the incident with him and that his difficulty understanding English could have prevented him from comprehending the difference between the admission of a prior bad act and the State bringing a separate charge.
For obvious reasons, this argument is a non-starter. Beyond failing to provide adequate factual support for the argument, Sandoval points to no Supreme Court authority for the proposition that a defendant's subjective belief carries significant weight in analyzing the voluntariness of a guilty plea. His argument is based on a strained construction of a footnote in Henderson v. Morgan, 426 U.S. 637 (1976). (Dkt. no. 46 at 7.) In Henderson, the Court concluded that a defendant's guilty plea was involuntary because the record demonstrated that neither the trial court nor counsel had explained the element of intent to him before he entered the plea. Henderson, 426 U.S. at 647. Not only does Henderson impose no requirement that a reviewing court consider a defendant's subjective beliefs, the focus of the case is whether the defendant received adequate notice of what he was being asked to admit. Id. Here, there is no dispute over whether Sandoval understood the elements of the crimes to which he entered a guilty plea. Moreover, Sandoval's subjective belief as to what counsel was telling him has no bearing on whether counsel provided ineffective assistance, which is the theory on which Ground One is based.
Because Sandoval cannot surmount the barriers to relief imposed by § 2254(d), the claim in Ground One based on alleged coercive tactics by counsel must be denied.
Sandoval alleges that counsel was ineffective by failing to investigate and interview two potential witnesses — Rosa Calleros and Ana Rosa Avalos, both of whom babysat the children of the household Sandoval shared with his girlfriend, Alejandra Ornelas, the mother of the victim. According to Sandoval, Calleros and Avalos would have been able to testify that they never observed any signs that the children were mistreated by Sandoval and that Ornelas' older boys were "out of control."
In Sandoval's first state post-conviction proceeding, the state district court addressed this clam as follows:
(Dkt. no. 17 at 3-4.)
On appeal from that decision, the Nevada Supreme Court adjudicated this claim as follows:
(Dkt. no. 17-13 at 3.)
The Nevada Supreme Court applied the correct federal law standard in adjudicating this claim. Sandoval has made no showing that the Nevada Supreme Court's decision was an unreasonable application of that standard or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Because Sandoval cannot surmount the barriers to relief imposed by § 2254(d), the claim in Ground One based on counsel's alleged failure to investigate witnesses must be denied.
Sandoval alleges that an interpreter was not present when he met with counsel to discuss his case. He further alleges that, although an interpreter was present when he entered his plea in court, an interpreter was not present the day before when he discussed the agreement with counsel and signed it.
Sandoval did not raise this claim in the lower court in his state post-conviction proceeding, but did present it on appeal to the Nevada Supreme Court as a ground for vacating his guilty plea. (Dkt. no. 17-10 at 26-27.) The Nevada Supreme Court addressed the claim as follows:
(Dkt. no. 17-13 at 3.)
Here again, the Nevada Supreme Court applied the correct federal law standard in adjudicating this claim and Sandoval has made no showing that the Nevada Supreme Court's decision was an unreasonable application of that standard or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Because Sandoval cannot surmount the barriers to relief imposed by § 2254(d), the claim in Ground One based on counsel's alleged failure to provide an interpreter must be denied.
In Ground Three, Sandoval claims that the state court's imposition of lifetime supervision violates the Double Jeopardy Clause and constitutes cruel and unusual punishment. He advances three theories to support his claim: (1) The imposition of lifetime supervision is an enhancement of his sentence that implicates his right to a jury determination. (2) The imposition of parole conditions and lifetime supervision "subjects him to double punishment for the same offense." (3) The travel restrictions required by the lifetime supervision statute infringe on his right to travel.
Sandoval presented each of these three theories to the Nevada Supreme Court on direct appeal. (Dkt. no. 15-18 at 12-16.) The Nevada Supreme Court addressed them as follows:
(Dkt. no. 16 at 4-6.)
With respect to the Nevada Supreme Court's decision on the latter two issues, Sandoval cites no Supreme Court case, and this court's search reveals no case, that would provide the basis for relief under § 2254(d)(1). See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (noting that if Supreme Court "cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law"). He also fails to establish that either decision was based on an unreasonable determination of the facts.
With respect to the Apprendi issue, Sandoval argues that the Nevada Supreme Court's decision is wrong because the lifetime supervision term "comes from a separate statute and requires a specific factual predicate." (Dkt. 46 at 13.) He argues that the existence of a "sexual offense" is a triggering fact that must be pleaded by the State and either admitted by the defendant when entering a guilty plea or found by a jury beyond a reasonable doubt.
As respondents point out, however, battery with intent to commit sexual assault on a child under fourteen (i.e., a violation of NRS § 200.400) was specifically included as "sexual offense" under the lifetime supervision statute when Sandoval entered his guilty plea to that crime. See NRS § 176.0931. Under Nevada law, the state court could impose the lifetime supervision requirement based solely on facts admitted by Sandoval, without the need to make any additional findings. Thus, the state court did not contravene Apprendi/Blakely by doing so. See Blakely, 542 U.S. at 303-04.
Section 2254(d)(1) precludes habeas relief with respect to Ground Three.
For the reasons set forth above, Sandoval's petition for habeas relief is denied.
This is a final order adverse to the petitioner. As such, Rule 11 of the Rules Governing Section 2254 Cases requires this Court to issue or deny a certificate of appealability (COA). Accordingly, the Court has sua sponte evaluated the claims within the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." With respect to claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id.
Having reviewed its determinations and rulings in adjudicating Sandoval's petition, the Court declines to issue a certificate of appealability for its resolution of any procedural issues or any of Sandoval's habeas claims.
It is therefore ordered that petitioner's petition for writ of habeas corpus (dkt. no. 23) is denied. The Clerk shall enter judgment accordingly.
It is further ordered that a certificate of appealability is denied.
