ANDREW P. GORDON, District Judge.
This action is a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Kenneth A. Hendren, a Nevada prisoner. The respondents have filed an answer, responding to all the claims in Hendren's petition for writ of habeas corpus, and Hendren has filed a reply. The Court will deny Hendren's petition.
On December 18, 2009, Hendren was charged, by information, with possession of a firearm by an ex-felon and unlawful possession of a short barreled shotgun, both felonies. See Information, Exhibit 6 (ECF No. 16-6). On October 20, 2010, Hendren pled guilty to those charges. See Transcript of Proceedings, October 20, 2010, Exhibit 13 (ECF No. 16-13); Guilty Plea Memorandum, Exhibit 14 (ECF No. 16-14). On February 16, 2011, Hendren was sentenced, as an habitual criminal, to two consecutive terms of life in prison, with parole eligibility after 10 years. See Transcript of Proceedings, Sentencing, February 16, 2011, Exhibit 16 (ECF No. 16-16); Judgment of Conviction, Exhibit 19 (ECF No. 16-19).
Hendren appealed. See Notice of Appeal, Exhibit 21 (ECF No. 16-21); Appellant's Opening Brief, Exhibit 48 (ECF No. 16-48). The Nevada Supreme Court affirmed Hendren's conviction and sentence on January 12, 2012. See Order of Affirmance, Exhibit 53 (ECF No. 17-4).
On January 11, 2013, Hendren filed a pro se petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus, Exhibit 57 (ECF No. 17-8). On August 7, 2013, with counsel, Hendren filed an amended petition. See Amended Petition for Writ of Habeas Corpus, Exhibits 61A and 61B, (ECF Nos. 17-12, 17-13). After hearing argument from the parties, the state district court denied Hendren's petition on February 17, 2015. See Transcript of Proceedings, January 12, 2015, Exhibit 66 (ECF No. 17-18); Findings of Fact, Conclusions of Law and Order, Exhibit 68 (ECF No. 17-20). Hendren appealed. See Notice of Appeal, Exhibit 71 (ECF No. 17-23); Appellant's Opening Brief, Exhibit 75 (ECF No. 17-27). The Nevada Supreme Court affirmed on December 18, 2015. See Order of Affirmance, Exhibit 81 (ECF No. 17-33).
This Court received Hendren's federal petition for writ of habeas corpus, initiating this action, pro se, on February 22, 2016 (ECF No. 6). Hendren's petition asserts the following claims:
Respondents filed an answer (ECF No. 14), and Hendren filed a reply (ECF No. 23). Hendren's habeas petition is fully briefed and before the Court for resolution on the merits of Hendren's claims.
A federal court may not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, 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). A state-court ruling is "contrary to" clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is "an unreasonable application" of clearly established federal law under section 2254(d) if it correctly identifies the governing legal rule but unreasonably applies the rule to the facts of the particular case. See Williams v. Taylor, 529 U.S. 362, 407-08 (2000). To obtain federal habeas relief for such an "unreasonable application," however, a petitioner must show that the state court's application of Supreme Court precedent was "objectively unreasonable." Id. at 409-10; see also Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Or, in other words, habeas relief is warranted, under the "unreasonable application" clause of section 2254(d), only if the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).
In Ground 1, Hendren claims that his guilty plea was not knowingly or intelligently entered into, in violation of his federal constitutional rights. See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 3-3A. More specifically, to the extent this claim is distinguishable from the ineffective assistance of counsel claims discussed below, Hendren contends that "he was unaware of the conditions of probation that would be imposed," and "his trial counsel made threats against him to secure his participation in a constitutionally infirm proceeding." See id.
Hendren presented this claim in his state habeas corpus action, and, on the appeal in that action, the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 81, pp. 1-2 (ECF No. 17-33, pp. 2-3). The Court finds this ruling of the Nevada Supreme Court to be reasonable.
The federal constitutional guarantee of due process of law requires that a guilty plea be knowing, intelligent and voluntary. Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011). "The voluntariness of [a petitioner's] guilty plea can be determined only by considering all of the relevant circumstances surrounding it." Brady, 397 U.S. at 749. Those circumstances include "the subjective state of mind of the defendant. . . ." Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). Addressing the "standard as to the voluntariness of guilty pleas," the Supreme Court has stated:
Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc), rev'd on other grounds, 356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 U.S. 25, 31 (1970) (noting that the "longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'").
In Blackledge v. Allison, 431 U.S. 63 (1977), the Supreme Court addressed the evidentiary weight of the record of a plea proceeding when the plea is subsequently subject to a collateral challenge. While noting that the defendant's representations at the time of his guilty plea are not "invariably insurmountable" when challenging the voluntariness of his plea, the court stated that, nonetheless, the defendant's representations, as well as any findings made by the judge accepting the plea, "constitute a formidable barrier in any subsequent collateral proceedings" and that "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge, 431 U.S. at 74; see also Muth v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012); Little v. Crawford, 449 F.3d 1075, 1081 (9th Cir. 2006).
Hendren's assertion that his plea was not knowing and intelligent because "he was unaware of the conditions of probation that would be imposed" is plainly without merit. Hendren did not receive probation. No conditions of probation were imposed upon him.
Hendren's assertion that his plea was not knowing and intelligent because his trial counsel "made threats against him" is also meritless. Hendren makes no specific allegations, and he proffers no evidence, regarding any such alleged threats.
Moreover, the court's canvass of Hendren, when he entered his plea included the following,
Transcript of Proceedings, October 20, 2010, Exhibit 13, pp. 2-6 (ECF No. 16-13, pp. 3-7). And, the plea agreement that Hendren signed included the following:
Guilty Plea Memorandum, Exhibit 14, p. 5 (ECF No. 16-14, p. 6).
In light of Hendren's representations in open court when he entered his guilty plea, and in light of the terms of the plea agreement that he signed, and considering Hendren's failure make any specific allegations regarding the alleged threats made by his counsel, the Court finds that the state courts' ruling on this claim was not objectively unreasonable. The state court ruling was not contrary to, or an unreasonable application of Brady, or Boykin, or any other clearly established federal law as determined by United States Supreme Court. The Court will deny habeas corpus relief on Ground 1.
In Ground 2, Hendren claims that he received ineffective assistance of counsel, in violation of his federal constitutional rights. See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 5-5I.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the attorney's representation "fell below an objective standard of reasonableness," 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." Strickland, 466 U.S. at 688, 694. 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 689. The petitioner's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, the errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. In the context of a guilty plea, to satisfy the prejudice prong of the Strickland test, the petitioner must show 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, 56-60 (1985).
Where a state court previously adjudicated the claim of ineffective assistance of counsel, under Strickland, establishing that the decision was unreasonable under AEDPA is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the Supreme Court instructed:
Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994-95 (2010) (acknowledging double deference required with respect to state court adjudications of Strickland claims).
In analyzing a claim of ineffective assistance of counsel, under Strickland, a court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court need not consider the other. See Strickland, 466 U.S. at 697.
Hendren first claims that his trial counsel was ineffective for failing to move to suppress the shotgun. See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 5A-5B. Hendren asserted this claim in his state habeas corpus action, and the Nevada Supreme Court rejected it, ruling as follows:
Order of Affirmance, Exhibit 81, pp. 2-3 (ECF No. 17-33, pp. 3-4). This ruling was reasonable. Hendren has never alleged with any specificity, and he has never proffered any evidence, establishing any basis for his contention that the traffic stop "was likely pretextual." See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 5A-5B.
Second, Hendren claims that his trial counsel was ineffective because he "permitted a beneficial plea offer to lapse, and then advised a `straight up' plea without the benefit of negotiations." See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 5B-5D. Hendren asserted this claim in his state habeas action; the Nevada Supreme Court affirmed the denial of relief on the claim, ruling as follows:
Order of Affirmance, Exhibit 81, p. 3 (ECF No. 17-33, p. 4). This ruling was not objectively unreasonable. In essence, Hendren's claim is based on the fact that he considered and, on the advice of counsel, rejected an earlier plea offer that he perceives to have been more advantageous than the plea offer he later accepted. This does not amount to a showing that his counsel acted unreasonably in advising Hendren to reject the first plea offer or to accept the second. Moreover, Hendren does not show that the plea agreement he eventually accepted was in fact less advantageous than the plea offer he earlier rejected; under the plea agreement that Hendren entered, he was able to, and did in fact, argue (albeit unsuccessfully) for a sentence with parole eligibility after one year in prison. See Transcript of Proceedings, Sentencing, February 16, 2011, pp. 5-6 (ECF No. 16-16, pp. 6-7).
Third, Hendren claims that his trial counsel was ineffective because he "misled the District Court into believing [Hendren] possessed two firearms." See Petition for Writ of Habeas Corpus (ECF No. 6), p. 5E. Hendren asserted this claim in his state habeas action; the Nevada Supreme Court affirmed the denial of relief on the claim, ruling as follows:
Order of Affirmance, Exhibit 81, p. 4 (ECF No. 17-33, p. 5). This ruling, too, was reasonable. Under the circumstances, the Nevada Supreme Court could reasonably have concluded that Hendren's counsel's misstatement regarding the number of firearms he possessed had no influence on the sentence ultimately imposed, and that, moreover, the sentencing court knew, from other sources, that Hendren was accused of possessing only one firearm.
Fourth, Hendren claims that his trial counsel was ineffective because he failed to move to withdraw the guilty plea. See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 5E-5F. The Nevada Supreme Court rejected this claim as follows:
Order of Affirmance, Exhibit 81, p. 4 (ECF No. 17-33, p. 5). This Court finds the Nevada Supreme Court's ruling on this claim to be reasonable. Hendren has made no showing that there was any valid ground upon which his counsel could have sought withdrawal of his guilty plea.
Fifth, Hendren claims that his appellate counsel was ineffective, on his direct appeal, for failing "to properly brief the issue of the validity of [Hendren's] plea." See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 5F-5H. Regarding this claim, the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 81, pp. 4-5 (ECF No. 17-33, pp. 5-6). This Court finds this ruling, as well, to be reasonable, both for the reason stated by the Nevada Supreme Court, and for the additional, more fundamental, reason that Hendren has never made any showing that there was any ground upon which appellate counsel could have argued successfully that Hendren's guilty plea was invalid.
Finally, Hendren claims that the cumulative effect of the errors of Hendren's counsel was a violation of his federal constitutional rights. See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 5H-5I. As the Court determines that there was no ineffective assistance of counsel, there are no errors of counsel to be considered cumulatively. This claim fails.
In sum, the Court finds that the state courts' ruling that Hendren's federal constitutional right to effective assistance of counsel was not violated was not contrary to, or an unreasonable application of Strickland, or any other clearly established federal law as determined by United States Supreme Court. The Court will deny habeas corpus relief on Ground 2.
The standard for issuance of a certificate of appealability calls for a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). The Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000). The Supreme Court further illuminated the standard in Miller-El v. Cockrell, 537 U.S. 322 (2003). The Court stated in that case:
Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
The Court has considered all of Hendren's claims with respect to whether they satisfy the standard for issuance of a certificate of appeal, and determines that none of them do. The Court will deny Hendren a certificate of appealability.
