MIRANDA M. DU, District Judge.
Before the Court are the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (dkt. no. 13) and respondents' answer (dkt. no. 17). The Court finds that petitioner is not entitled to relief, and the Court denies the petition.
Petitioner and his co-defendant Maurice King were charged in a criminal complaint with the following crimes:
1. First-degree kidnaping;
2. Pandering of a child;
3. Pandering: Furnishing transportation;
4. Living from the earnings of a prostitute; and
5. Child endangerment.
Exh. 2 (dkt. no. 18). At the preliminary hearing, the justice of the peace bound petitioner and King over to the district court for trial on counts 1, 2, 3, and 5. The justice of the peace found that there was no evidence that the victim had committed an actual act of prostitution, and thus did not bind the two defendants over for trial on count 4 of the criminal complaint. Exh. 4 (dkt. no.18). Co-defendant King moved to sever his trial from petitioner's trial. Exh. 14 (dkt. no. 18). The state district court granted the motion. Exh. 7, at 25 (dkt. no. 18).
The prosecution sought admission of evidence of petitioner's prior criminal conduct. Petitioner had been arrested on another charge of pandering, and he pleaded guilty to attempted pandering, a gross misdemeanor. The state district court denied the prosecution's motion to admit the evidence during the prosecution's case-in-chief but noted that the trial judge could address the issue of impeachment.
With renumbering of the counts and some amendments on the date of the trial, petitioner ultimately was charged with:
1. First-degree kidnaping;
2. Pandering of a child;
3. Pandering: Furnishing transportation to a child;
4. Child abuse and neglect.
Exh. 31 (dkt. no. 19). The jury found petitioner not guilty of count 1 and guilty of counts 2, 3 and 4. Exh. 34 (dkt. no. 19). Petitioner appealed, and the Nevada Supreme Court affirmed. Exh. 56 (dkt. no. 20).
Frank Kocka represented petitioner in pre-trial proceedings, through trial, and on direct appeal.
Petitioner filed a post-conviction habeas corpus petition and a supporting memorandum in the state district court. Exh. 61, Exh. 62 (dkt. no. 20). The state district court denied the petition. Exh. 72 (dkt. no. 20). Petitioner appealed, and the Nevada Supreme Court affirmed. Exh. 81 (dkt. no. 21).
Petitioner then commenced this action. The five grounds for relief in the petition (dkt. no. 13) are photocopies of the grounds that he presented in his state habeas corpus petition's supporting memorandum. See Exh. 62 (dkt. no. 20).
Congress has limited the circumstances in which a federal court can grant relief to a petitioner who is in custody pursuant to a judgment of conviction of a state court.
28 U.S.C. § 2254(d). "By its terms § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
Richter, 562 U.S. at 100. "For purposes of § 2254(d)(1), `an unreasonable application of federal law is different from an incorrect application of federal law.'" Id. (citation omitted). "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." Id. (citation omitted).
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Richter, 562 U.S. at 102.
Id. at 103.
All five grounds for relief are claims of ineffective assistance of counsel. "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 & n.14 (1970). A petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. "[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
Richter, 562 U.S. at 105 (citations omitted).
Ground 1 is a claim that trial counsel provided ineffective assistance because he did not try promptly to obtain evidence that petitioner argues would have been favorable. First, counsel did not try to obtain security-camera videotape from Fashion Q, where the victim stated that petitioner had her buy clothes for prostitution. Second, counsel did not try promptly to obtain a statement from the driver of a taxi cab in which the victim stated that she rode with petitioner, co-defendant King, and another woman after King's car broke down. On this issue, the Nevada Supreme Court held:
Exh. 81, at 2 (dkt. no. 21). The Court agrees with respondents. The Nevada Supreme Court reasonably could have concluded that petitioner did not suffer ineffective assistance of counsel, because petitioner did not explain in the state court petition how this evidence, even if it existed, would have created a reasonable probability of a different result at trial. Ground 1 is without merit.
Reasonable jurists would not find the Court's conclusion to be debatable or wrong, and the Court will not issue a certificate of appealability for ground 1.
In ground 2, petitioner alleges that counsel failed on three issues:
The Nevada Supreme Court held:
Exh. 81, at 2 (dkt. no. 21). The accomplice-corroboration statute states:
Nev. Rev. Stat. § 175.291 (emphasis added). The victim in this case could not pander herself. See Nev. Rev. Stat. § 201.300(1)(a) (1997). She could not furnish herself transportation for the purpose of pandering herself, as the statute was written. See Nev. Rev. Stat. § 201.340(1) (1997). She could not commit child abuse upon herself. See Nev. Rev. Stat. § 200.508. In other words, the victim could not be liable for the identical offenses charged against petitioner, and thus she was not an accomplice within the meaning of Nev. Rev. Stat. § 175.291. The Nevada Supreme Court reasonably could have concluded that counsel did not provide ineffective assistance by not raising the accomplice-corroboration requirement.
Regarding the lack of a pre-trial petition for a writ of habeas corpus, petitioner takes the preliminary hearing judge's comments out of context. After the preliminary hearing testimony, the justice of the peace dismissed the count of living from the earnings of a prostitute because the statute requires an underlying act of prostitution, and in this case no prostitution actually occurred. Exh. 4, at 105 (dkt. no. 18). The discussion turned to bail. In responding to co-defendant King's counsel, the judge stated:
Exh. 4, at 110 (dkt. no. 18). The first part of that sentence applies only to the codefendant King, who had been arguing that no evidence for any charge was presented against him at the preliminary hearing. The second part of the sentence appears to apply both to petitioner and to the co-defendant King. However, the judge was not referring to the crimes that he had bound over to the district court. He was referring to the count of living from the earnings of a prostitute that he had just dismissed because the required underlying action of prostitution had not occurred. The other charges did not require an underlying act of prostitution, and the judge was not saying that those crimes had not occurred. The Nevada Supreme Court reasonably could have concluded that the lack of a pre-trial habeas corpus petition was not ineffective assistance of counsel.
Petitioner's third point is largely a retrospective look on his first two points from the end of the trial. First, he argues that the statement of the justice of the peace that petitioner did not finalize the crime was borne out by the trial, that the victim's testimony had changed. However, as noted above, the justice of the peace was referring to the crime of living from the earnings of a prostitute, which did not occur because the victim never successfully prostituted herself. Petitioner has a faulty premise that the justice of the peace stated that none of the crimes occurred. Second, he argues that the receipts from Auto Zone and Fashion Q were not sufficient corroboration for the testimony of the accomplice. However, the accomplice-corroboration requirement did not apply because the victim was not an accomplice within the meaning of § 175.291. The Nevada Supreme Court reasonably could have concluded that petitioner did not receive ineffective assistance of counsel on this issue.
Reasonable jurists would not find the Court's conclusions to be debatable or wrong, and the Court will not issue a certificate of appealability for ground 2. In ground 3, petitioner claims that counsel provided ineffective assistance because counsel did not advise petitioner adequately on whether to testify. On this issue, the Nevada Supreme Court held:
Exh. 81, at 2-3 (dkt. no. 21). On the underlying issue, the Nevada Supreme Court held on direct appeal:
Exh. 56, at 1-2 (dkt. no. 20). As noted above, the prior-bad-act evidence in this case was a conviction for attempted pandering, a gross misdemeanor. The judge hearing the motion to admit the evidence ruled that the prosecution could not admit evidence of that conviction in the prosecution's case in chief. The judge hearing the motion left to the trial judge the issue of whether the prior conviction could be admitted to impeach petitioner if he testified.
The Nevada Supreme Court's statement of what petitioner failed to allege in his state habeas corpus petition is correct. Petitioner did not allege what advice counsel gave him and how it was faulty. Therefore, the Nevada Supreme Court reasonably could have concluded that petitioner had not demonstrated ineffective assistance of counsel. Ground 3 is without merit.
Reasonable jurists would not find the Court's conclusions to be debatable or wrong, and the Court will not issue a certificate of appealability for ground 3.
In ground 4, petitioner alleges that counsel was ineffective because he did not understand the difference between an objection to a racially motivated peremptory challenge of a juror and an objection that the jury venire did not represent a fair crosssection of the community. On this issue, the Nevada Supreme Court held:
Exh. 81, at 3 (dkt. no. 21).
Duren v. Missouri, 439 U.S. 357, 364 (1979). Counsel moved that the jury did not represent a fair cross-section of the community, because only one African American individual was in the jury venire. Counsel specifically stated that he was not objecting to a racially motivated peremptory challenge. Exh. 24, at 200 (dkt. no. 18). See also Batson v. Kentucky, 476 U.S. 79 (1986). The prosecution responded that the one black person was selected for the jury, and so a Batson objection would not stand. Exh. 24, at 201 (dkt. no. 18). The state district court denied the motion. Id. at 202 (dkt. no. 18).
Contrary to petitioner's allegations, counsel did understand the law and the difference between an argument that the jury pool did not represent a fair cross-section of the community and a Batson objection. The problem was that counsel could not establish the second and third elements of such a challenge, as described in Duren. Petitioner himself made no effort to establish a prima facie violation in his state habeas corpus petition. This was not deficient performance by counsel, instead, the facts simply did not support his challenge. The prosecutor explained how people were selected into the jury pool and how the county did not use a biased process. The Nevada Supreme Court reasonably could have concluded that counsel did not provide ineffective assistance.
Ground 4(a) is a claim that appellate counsel provided ineffective assistance because he did not raise the fair cross-section issue on direct appeal.
Exh. 81, at 4 (dkt. no. 21). The Nevada Supreme Court noted correctly that the state habeas corpus petition had no demonstration of a prima facie violation of the fair crosssection requirement. Its determination that appellate counsel did not provide ineffective assistance is a reasonable application of Strickland.
Reasonable jurists would not find the Court's conclusions to be debatable or wrong, and the Court will not issue a certificate of appealability for grounds 4 and 4(a).
Ground 5 is a claim that appellate counsel provided ineffective assistance because he did not raise the issue that insufficient evidence existed to support the verdicts of guilt. On this issue, the Nevada Supreme Court held:
Exh. 81, at 4-5 (dkt. no. 21). The Court has read the testimony of the victim, and the Nevada Supreme Court's summary is accurate. See Exh. 25 (dkt. no. 18), 30 (dkt. no. 19). The Nevada Supreme Court reasonably could have concluded that appellate counsel did not provide ineffective assistance when counsel did not raise a sufficiencyof-evidence challenge on direct appeal. Ground 5 is without merit.
Reasonable jurists would not find the Court's conclusions to be debatable or wrong, and the Court will not issue a certificate of appealability for ground 5.
It is therefore ordered that the petition for a writ of habeas corpus (dkt. no. 13) is denied. The Clerk of the Court is directed to enter judgment accordingly and close this action.
It is further ordered that a certificate of appealability is denied.
