MIRANDA M. DU, District Judge.
This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by state prisoner Anthony Vincent Abeyta is before the Court for final disposition on the merits (dkt. no. 8). Respondents have answered the petition (dkt. no. 24), and Abeyta replied (dkt. no. 27).
On February 3, 2010, Abeyta pleaded guilty to one count of attempted murder with the use of a deadly weapon (exhibits to respondents' motion to dismiss, dkt. no. 14, exh. 36).
On June 16, 2011, Abeyta filed a proper person postconviction petition for a writ of habeas corpus in state district court. (Exh. 63.) Following an evidentiary hearing, the state district court denied the petition. (Exhs. 74, 83.) The Nevada Supreme Court affirmed the denial of the petition on April 11, 2012, and remittitur issued on May 8, 2012. (Exhs. 98, 100.)
Abeyta dispatched this federal petition for writ of habeas corpus on May 7, 2012 (dkt. no. 8). Respondents have answered the remaining grounds (dkt. no. 24).
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:
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). This Court's ability to grant a writ is limited to cases where "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86, 102 (2011). 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, 563 U.S. 170, 181 (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).
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, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 694.
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 74 (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).
To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, AEDPA requires substantially more deference:
F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Cullen, 563 U.S. at 181.
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) the attorney made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) that the deficient performance prejudiced the defense. Williams, 529 U.S. at 390-91 (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) (internal quotations and citations omitted). When the ineffective assistance of counsel claim is based on a challenge to a guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
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, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411, 1413 (2009)). The Supreme Court emphasized that: "We take a `highly deferential' look at counsel's performance . . . through the `deferential lens of § 2254(d).'" Id. at 1403 (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. Cullen, 563 U.S. at 181-84. The United States Supreme Court has specifically reaffirmed the extensive deference owed to a state court's decision regarding claims of ineffective assistance of counsel:
Harrington, 562 U.S. at 105. "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." Id. at 104 (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).
Abeyta pleaded guilty upon the advice of counsel, thus he "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective] . . . and that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 56-57, 59; Lambert, 393 F.3d at 980-981.
With the exception of ground 10 — set forth below — Abeyta's remaining grounds are all claims of ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights.
Abeyta claims that he did not enter his guilty plea knowingly and voluntarily due to ineffective assistance of counsel (dkt. no. 8 at 4-8). Specifically, he contends his counsel (a) failed to file a petition for writ of habeas corpus after his preliminary hearing and (b) failed to file a motion to suppress the testimony of Kelly Mitch. Id. To the extent that federal habeas review of this ground is not foreclosed by Tollett v. Henderson, 411 U.S. 258, 267 (1973), it is frivolous and patently meritless, and the Nevada Supreme Court's disposition of this claim is not contrary to, or an unreasonable application of, clearly established federal law.
The Nevada Supreme Court affirmed the denial of this claim, stating:
(Exh. 98 at 2-3.)
As the Nevada Supreme Court observed, to demonstrate probable cause to bind a defendant over for trial in Nevada, the State must present only "slight, even marginal evidence" that crimes were committed and that the defendant committed them. Clay v. Eighth Judicial Dist. Ct., 305 P.3d 898, 906 (Nev. 2013) (citing Sheriff v. Hodes, 606 P.2d 178, 180 (Nev. 1980)).
The state-court record reflects the following: Daniel Georgescu testified at the preliminary hearing that about 8:30 p.m. on September 2, 2008, he drove his car, with Gilbert Trujillo riding in the front passenger seat, to a Wendy's restaurant in Las Vegas to pick up a person named Kelly Mitch. (Exh. 4 at 5-8.) Georgescu identified Abeyta as the person who was there with Mitch when they arrived. (Id. at 8-9.) Mitch got in the car, the doors to the vehicle locked, and then she told Georgescu to drive away. (Id. at 9-10.) Abeyta then reached through the front passenger window, placed his fist against Trujillo's neck, and pulled it across the neck. (Id. at 10.) Trujillo began bleeding. (Id.) Georgescu drove away and took Trujillo to a hospital. (Id. at 11-12.)
Gilbert Trujillo testified that after Mitch entered the vehicle, he thought Abeyta struck him in the neck. (Id. at 20-23.) As Georgescu drove away, Trujillo saw blood on his shirt and put his hand on the wound to apply pressure during the drive to the hospital. (Id. at 23-24.) At the hospital, the doctors performed exploratory surgery to determine whether the laceration had caused any nerve damage, and he received fourteen staples, which left a four-inch scar on his neck. (Id. at 25.) Trujillo testified that he had had numbness in his neck since the date of the attack. (Id. at 26.)
Kelly Mitch testified that she was extremely intoxicated at the time of the incident, but remembered seeing Trujillo and Georgescu arrive to pick her up in the car and remembered entering the vehicle. (Id. at 37-38.) She testified that she had been arguing with Abeyta that day. (Id. at 41.) She testified that after they drove off, Trujillo was bleeding. (Id. at 42.)
Abeyta has failed to demonstrate that the Nevada Supreme Court's decision was an unreasonable application of Strickland. While no witness testified to seeing a weapon, the testimony that Abeyta ran his fist along Trujillo's throat and caused serious bleeding and a large laceration certainly provides slight or marginal evidence to prove Abeyta used a knife or other unknown sharp object and acted with malice.
Moreover, while Abeyta alleges that counsel should have moved to suppress Mitch's testimony, he provides no explanation as to the basis for such a motion or any further factual allegations related to this claim whatsoever.
Abeyta has therefore failed to demonstrate that the Nevada Supreme Court's decision is contrary to, or involves an unreasonable application of, Strickland, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Federal habeas relief is denied as to ground 1.
Abeyta asserts that his counsel was ineffective during sentencing because he never inspected the presentence investigation report for inaccuracies and failed to object to inaccuracies during sentencing proceedings (dkt. no. 8 at 14-16). The Nevada Supreme Court affirmed the denial of this claim, stating:
(Exh. 98 at 5-6.)
The state-court record reflects that Abeyta's trial counsel testified at the evidentiary hearing on Abeyta's state postconviction petition. (Exh. 74.) Counsel testified as follows: he reviewed Abeyta's presentence investigation report (PSI) with him. Abeyta was concerned that the PSI reflected that he had been charged with murder because the charge was eventually pled down to second-degree kidnapping. Counsel did not object because it was not inaccurate. Id. at 12. He made a tactical decision not to object to certain other potential inaccuracies in the PSI so as to deemphasize Abeyta's lengthy criminal history. He chose to focus instead on Abeyta's significant participation in inmate programs while he had been in custody in this case. (Id. at 19-37.)
This Court agrees with respondents that because the PSI was accurate, Abeyta has failed to show that his counsel's failure to lodge objections constituted deficient performance or that Abeyta was prejudiced. As Abeyta has failed to demonstrate that the Nevada Supreme Court's decision is contrary to, or involves an unreasonable application of, Strickland, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, ground 2 is denied. 28 U.S.C. § 2254(d).
Abeyta contends his counsel failed to communicate with him for over a year and failed to attend critical court dates (dkt. no. 8 at 19-22). He alleges that he did not have an opportunity to discuss any defense strategies.
The Nevada Supreme Court affirmed the denial of these claims, stating:
(Exh. 98 at 3-4.)
As the state supreme court points out, the record belies Abeyta's claim that his trial counsel did not represent him at the preliminary hearing. (Exh. 4.) At the evidentiary hearing on the state postconviction petition, Abeyta's trial counsel testified that he visited the jail several times to meet with Abeyta, took his and his family members' calls and met with family members regarding his case. He also testified that he and Abeyta discussed specific defense strategies and that he was prepared to go to trial the day that Abeyta accepted a guilty plea agreement. Trial counsel also testified that he reviewed the guilty plea agreement with Abeyta in detail; his recollection was that they were in the empty courtroom with the empaneled jury outside. (Exh. 74.)
Abeyta has therefore failed to demonstrate that the Nevada Supreme Court's decision on federal ground 3 is contrary to, or involves an unreasonable application of, Strickland, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Ground 3 is denied.
Abeyta claims that his counsel failed to object to prejudicial misstatements made by a victim impact speaker at sentencing (dkt. no. 8 at 26-28). The Nevada Supreme Court affirmed the denial of this claim, stating:
(Exh. 98 at. 6.)
The sentencing transcript reflects the Nevada Supreme Court's observations — that Abeyta's trial counsel informed the court that he had anticipated that the victim would make a statement and had prepared accordingly. (Exh. 33 at 3.) He also lodged an objection when the victim spoke about the incident fifteen years earlier, and the state district court then directed the victim that he could properly comment on how the incident in this case has impacted his life and his family. (Id. at 11-12.) The court had the record of Abeyta's extensive criminal history before it and specifically noted that its sentencing determination was influenced by the fact that the then-forty-one-year-old Abeyta's criminal history dated back to age sixteen and showed a propensity for violence and violence fueled by alcohol addiction. (Id. at 14-15.)
This Court concludes that Abeyta has failed to demonstrate that the Nevada Supreme Court's decision here is contrary to, or involves an unreasonable application of, Strickland, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Federal habeas relief is denied as to ground 4.
Abeyta contends that his counsel failed to tell him that a life sentence was not mandatory (dkt. no. 8 at 31-34). The Nevada Supreme Court affirmed the denial of this claim, stating:
(Exh. 98 at 5.)
As discussed by the Nevada Supreme Court, trial counsel testified at the state postconviction evidentiary hearing that he and Abeyta "had some ups and downs throughout the course of my representing him." (Exh. 74 a 9.) Trial counsel testified that Abeyta initially wanted to go to trial but that the final decision to enter into the guilty plea agreement was made by Abeyta. (Id.) Abeyta was set to be tried on two counts: attempted murder with use of a deadly weapon and battery with a deadly weapon causing substantial bodily harm. (Exh. 4 at 50.) In the guilty plea agreement that Abeyta ultimately accepted, he pleaded guilty to attempted murder with use of a deadly weapon. (Exh. 30.) Counsel testified that when they discussed that plea offer he told Abeyta that, in his opinion, if Abeyta was convicted at trial of both counts on the basis of having taken a knife and sliced the victim's throat, the state district court would sentence him under the large habitual criminal statute (with a potential life sentence). (Exh. 74 at 32.)
Counsel's candid advice about the potential outcome of trial is not deficient assistance. Thus, Abeyta has failed to demonstrate that the Nevada Supreme Court's decision on federal ground 5 is contrary to, or involves an unreasonable application of, Strickland, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Ground 5 is denied.
Abeyta asserts that, despite his requests, counsel failed to investigate, listen to, or transcribe calls that Abeyta placed from CCDC (dkt. no. 8 at 40-42). Abeyta also claims that some of the calls would have proven favorable to the defense because they would have shown that he did not intend to kill the victim. (Id. at 40.)
The Nevada Supreme Court affirmed the denial of this claim, stating:
(Exh. 98 at 3 and n.3.)
The state-court record reflects the following. Numerous telephone calls involving Abeyta were recorded at the CCDC and provided to the defense in discovery. (Exh. 20 at 7; Exh. 25.) On June 16, 2009, Abeyta's counsel filed a motion in limine seeking to exclude the phone calls as unduly prejudicial and arguing that they had not been verified or transcribed. (Exh. 20 at 8.) On September 11, 2009, the State opposed, arguing that the phone calls were admissible under Nevada law, identifying the witness who would verify them, explaining that it was in the process of transcribing all of the calls it intended to use, and offering to transcribe any others that the defense requested. (Exh. 25 at 3-4.) On September 15, 2009, the court held a hearing and denied the motion. (See Exh. 7 at 28 (state-court minutes).)
About one and one-half months later, on November 2, 2009, Abeyta entered his guilty plea. (Exh. 31.) The Court agrees with respondents that this procedural history belies Abeyta's claim that his counsel made no efforts to investigate or preclude the admission of the recorded phone calls. Abeyta thus fails to demonstrate that his counsel's performance was deficient.
With respect to Abeyta's assertion that his counsel should have investigated the calls further because such investigation would have revealed that there were recorded phone calls that were favorable to the defense, Abeyta has not identified a single recorded phone call that would have proven that he was not guilty. Moreover, as the Nevada Supreme Court explained, even if there were phone calls that could have aided Abeyta in his defense, they would not have been inadmissible hearsay if offered by the defense. See NRS 51.035. Accordingly, Abeyta fails to demonstrate that, but for counsel's actions relating to the recorded calls, he would have chosen to proceed to trial rather than plead guilty.
Abeyta has not shown that the Nevada Supreme Court's decision on federal ground 7 is contrary to, or involves an unreasonable application of, Strickland, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Federal habeas relief on ground 7 is denied.
Finally, Abeyta claims that his sentence is cruel and unusual and violates due process and equal protection in violation of his Sixth, Eighth and Fourteenth Amendment rights because the trial court sentenced him to a consecutive term for the weapon enhancement when no weapon was ever introduced into evidence (dkt. no. 8 at 53-55). Abeyta also contends that the state district court was misled by inaccuracies in the PSI.
In affirming his convictions, the Nevada Supreme Court denied this claim, stating:
(Exh. 53 at 1-2.)
The Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. Solem v. Helm, 463 U.S. 277, 286-287 (1983); Rummel v. Estelle, 445 U.S. 263, 271-273 (1980). Successful challenges to non-capital sentences on the basis of disproportionality are "exceedingly rare." Rummel, 445 U.S. at 272.
Abeyta was sentenced to two consecutive terms of five to twenty years for attempted murder with use of a deadly weapon. (Exh. 33.) The state district court imposed a lesser sentence than the State sought. (Id. at 4.) The court explained that it took Abeyta's twenty-five-year violent criminal history into account. (Id. at 14.) Finally, Abeyta does not challenge the constitutionality of the applicable sentencing statute, and the sentence was within the statutory limits. NRS § 193.330(1)(a)(1); NRS § 193.162.
Accordingly, Abeyta has not shown that the Nevada Supreme Court's decision on federal ground 10 is contrary to, or involves an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Ground 10 is denied.
The petition, therefore, is denied in its entirety.
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 Abeyta's petition, the Court finds that none of those rulings meets the Slack standard. The Court therefore declines to issue a certificate of appealability for its resolution of any of Abeyta's claims.
It is therefore ordered that the petition (dkt. no. 8) is denied in its entirety.
It is further ordered that a certificate of appealability is denied.
It is further ordered that the Clerk shall enter judgment accordingly and close this case.
