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 merits of the petition.
On April 27, 2009, the State charged petitioner in the Second Judicial District Court for the State of Nevada, by information with the following: Count I, causing substantial bodily harm to another by driving a vehicle while under the influence of alcohol; and Count II, leaving the scene of an accident involving personal injury. (Exh. 5.)
Petitioner did not file a direct appeal to the Nevada Supreme Court.
On December 11, 2009, petitioner, acting in pro per, filed a post-conviction petition for a writ of habeas corpus in the state district court. (Exh. 14.) Appointed counsel filed a supplemental petition on February 1, 2011. (Exh. 31.) The state district court held an evidentiary hearing on November 8, 2011. (Exh. 56.) On December 27, 2011, the state district court filed a written order which ruled that counsel was not ineffective and which denied the petition. (Exh. 40.)
Petitioner appealed the denial of his state post-conviction habeas petition. (Exh. 42.) In his fast track statement before the Nevada Supreme Court, petitioner argued these issues:
(Exh. 49 at 6.) In an order filed November 14, 2012, the Nevada Supreme Court affirmed the denial of the post-conviction habeas petition. (Exh. 53.) Remittitur issued on December 11, 2012. (Exh. 55.)
On December 15, 2012, petitioner dispatched his federal habeas petition to this Court. (ECF No. 7 at 1.) Petitioner's federal petition repeats the arguments made in the fast track statement before the Nevada Supreme Court, verbatim, with petitioner inserting pages from the fast track statement within the federal petition. (Compare ECF No. 7 with Exh. 49.) Respondents moved to dismiss the petition. (ECF No. 10.) By order filed January 17, 2014, the Court granted in part, and denied in part, the motion to dismiss. (ECF No. 17.) Specifically, the Court ruled that Ground 1(b) of the federal petition, which alleged violation of the Eighth Amendment, was procedurally barred and dismissed with prejudice. (Id.) The Court ruled that Ground 1(a) and Ground 2 of the federal petition, both of which allege ineffective assistance of counsel, shall proceed. (Id.) The Court directed respondents to file an answer addressing the merits of Grounds 1(a) and 2 of the petition. (Id.). Respondents filed an answer. (ECF No. 19.) Petitioner filed a reply to the answer. (ECF No. 22.) The Court now considers the merits of the remaining claims in the federal 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).
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, 129 S.Ct. 1411, 1413 (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).'" 563 U.S. at 190 (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 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. 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.)
In Ground 1(a) of the federal petition, petitioner alleges that he received ineffective assistance of counsel at the sentencing stage because counsel failed to provide mitigation evidence at sentencing to explain his youth, his ability to gain inpatient treatment for his addiction, including the willingness of his parents to pay for treatment, his loving and generous nature, and his remorse for the victim. (ECF No. 7 at 5-6.) In Ground 2 of the federal habeas petition, petitioner claims that "counsel was ineffective under the 6
At the evidentiary hearing regarding petitioner's state post-conviction habeas petition, the state district court orally found as follows:
(Exh. 56 at 63-64.) In the written order denying the post-conviction petition, the state district court found and held as follows:
(Exh. 40, at 2-3.)
On appeal, the Nevada Supreme Court addressed both of the issues raised in Grounds 1(a) and 2 of the federal habeas petition:
(Exh. 53 at 1-2.) The state courts' factual findings, as outlined above, are presumed correct. 28 U.S.C. § 2254(e)(1). As to Grounds 1(a) and 2, 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 Grounds 1(a) and 2, the remaining grounds in the 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.
