ANDREW P. GORDON, District Judge.
Petitioner Richard Denson is a Nevada prisoner convicted of burglary in Nevada's Eighth Judicial District Court, in Clark County, Nevada. He filed this pro se petition for writ of habeas corpus. I will deny Denson's petition.
On June 1, 2009, Denson was charged by criminal complaint, in Clark County, Nevada with conspiracy to commit larceny, burglary, grand larceny, possession of stolen property, malicious destruction of property, and possession of burglary tools. See Criminal Complaint, Exh. 1 (ECF No. 38-1, pp. 6-8). A preliminary hearing was held in a Las Vegas Justice Court on August 10, 2009. See Transcript of Preliminary Hearing, Exh. 2 (ECF No. 38-2). Following the preliminary hearing, Denson was bound over to the district court, and an information was filed on August 14, 2009, charging him with the same six crimes. See Information, Exh. 3 (ECF No. 38-3). The Information included notice that the State would seek sentencing of Denson as a habitual criminal pursuant to NRS 207.010. See id. at 5-6 (ECF No. 38-3, pp. 6-7).
On July 23, 2010, Denson and the State entered into a plea agreement. Denson agreed to plead guilty to one count of burglary in Case No. C257081 and one count of burglary in Case No. C257359. The State agreed to dismiss the other charges in both cases, and to not pursue other uncharged offenses. See Guilty Plea Agreement, Exh. 12 (ECF No. 38-12); Transcript of Hearing, Exh. 13 (ECF No. 38-13). Denson stipulated to sentencing as a habitual criminal. See Guilty Plea Agreement, Exh. 12 (ECF No. 38-12). An Amended Information, consistent with the plea agreement, was filed the same day. See Amended Information, Exh. 11 (ECF No. 38-11).
Denson's sentencing was on October 4, 2010. See Transcript of Sentencing, Exh. 14 (ECF No. 38-14). He was sentenced, as a habitual criminal, to life in prison with the possibility of parole after ten years. See Judgment of Conviction, Exh. 15 (ECF No. 38-15). The sentence was made consecutive to his sentence in Case No. C257359, which was a prison sentence of 8 to 20 years. See id. The judgment of conviction was filed on October 7, 2010. See id.
Denson initiated a state habeas action on September 26, 2011. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 16 (ECF No. 38-16); Addendum to Petition, Exh. 17 (ECF No. 39-1). Counsel was appointed for Denson, who filed a supplement to the petition. See Transcript of Proceedings, February 3, 2012, Exh. 20 (ECF No. 39-4); Supplement to Petition, Exh. 21 (ECF No. 39-5). The state court granted Denson an evidentiary hearing, which was held on October 18, 2013. See Transcript of Proceedings, August 23, 2013, Exh. 23 (ECF No. 39-7); Transcript of Proceedings, October 18, 2013, Exh. 24 (ECF No. 39-8). At the conclusion of the evidentiary hearing, the court ruled that Denson could proceed with an appeal pursuant to Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994), but denied Denson's petition in all other respects. See id. at 149 (ECF No. 39-8, p. 150). The state district court's written order was filed on July 11, 2014. See Findings of Fact, Conclusions of Law and Order, Exh. 25 (ECF No. 40-1).
Denson filed a notice of appeal, initiating his Lozada appeal, on July 11, 2014. See Notice of Appeal, Exh. 26 (ECF No. 40-2). The Nevada Court of Appeals affirmed the judgment of conviction on July 14, 2015. See Order of Affirmance, Exh. 59 (ECF No. 41-22). The remittitur issued on August 10, 2015. See Remittitur, Exh. 60 (ECF No. 41-23).
Denson also appealed from the state district court's judgment in his state habeas action, and the Nevada Court of Appeals affirmed that judgment on July 14, 2015. See Order of Affirmance, Exh. 30 (ECF No. 40-6). The court's remittitur was issued on August 10, 2015. See Remittitur, Exh. 31 (ECF No. 40-7).
This Court received Denson's petition for writ of habeas corpus initiating this action on July 31, 2015. ECF No. 4. After the payment of the filing fee was resolved, the respondents filed a motion for more definite statement on October 19, 2016 (ECF No. 22). I granted that motion on January 26, 2017. ECF No. 24.
Denson filed an amended habeas petition on May 25, 2017. ECF No. 29. On September 28, 2017, the respondents filed a motion to dismiss, contending that Denson's amended petition was still vague and that certain of Denson's claims were unexhausted in state court. ECF No. 37.
On February 16, 2018, Denson filed a motion for stay, in which he appeared to request a stay of this action to exhaust claims in state court. ECF No. 43. On March 13, 2018, Denson filed a second amended petition for writ of habeas corpus. ECF No. 46. In an order entered on April 18, 2018, I construed Denson's filing of the second amended petition as a motion for leave to amend, and granted the motion, allowing the filing of Denson's second amended petition. I denied as moot the respondents' motion to dismiss the first amended petition, and I denied Denson's motion for stay. ECF No. 47.
Denson's second amended habeas petition — now the operative petition — includes the following claims:
ECF No. 46, pp. 3-5.
On July 9, 2018, Respondents filed a motion to dismiss, contending that Ground 2 of Denson's second amended habeas petition is barred by the statute of limitations. ECF No. 48. On September 14, 2018, I granted that motion and dismissed Ground 2. ECF No. 49. The respondents filed an answer responding to the remaining claims in Denson's second amended habeas petition on November 7, 2018. ECF No. 50. Denson did not file a reply.
28 U.S.C. § 2254(d) sets forth the standard of review applicable in this case under the Antiterrorism and Effective Death Penalty Act (AEDPA):
28 U.S.C. § 2254(d).
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, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
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 75 (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).
"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, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing 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)).
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 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.
In his remaining claims, Denson contends that his federal constitutional rights were violated as a result of ineffective assistance of his trial counsel with respect to his sentencing because his counsel "failed to review information relative to sentencing," "failed to provide mitigation in support of concurrent sentences," "failed to submit both errors and findings to the court in the presentence investigation report (PSI), and failed to expose the judgment of convictions (JOC) to investigations." ECF No. 46, pp. 3-3f (as in original).
Denson asserted these claims in his state habeas action. On his appeal in that case, the Nevada Court of Appeals ruled as follows:
Order of Affirmance, Exh. 30, pp. 3-4 (ECF No. 40-6, pp. 4-5).
The state court's ruling was reasonable. Denson does not make any showing that he was prejudiced by the alleged errors of counsel. There is no reasonable probability that, but for the alleged errors of counsel, the result of Denson's sentencing would have been different.
In Ground 1 of his second amended petition, Denson alleges the following specific errors of his trial counsel at his sentencing:
There is no question that, at Denson's sentencing hearing, the sentencing court was informed of all the information that Denson faults his counsel for not articulating. See Sentencing Transcript, Exh. 14 (ECF No. 38-14); Presentence Investigation Report, Exh. 62 (ECF No. 54-1) (filed under seal). Denson has not identified any significant mitigating evidence that was unknown to the sentencing judge. And Denson has not pointed to any significant error in the presentence investigation report that was left uncorrected. I must conclude, then, that what is left of Denson's argument is that his counsel should have argued more convincingly to the sentencing judge, making use of the information specified by Denson, in response to the judge's comment— which was apparently a rhetorical comment, rather than a question seeking information from counsel—that he saw nothing positive that Denson had done in his adult life. This argument is meritless. In view of Denson's extensive criminal history, including his criminal activity while on bail in this case, there is no showing of a reasonable probability that the judge would have sentenced Denson to concurrent prison time, instead of consecutive time, had counsel argued Denson's case differently at the sentencing hearing. The state court did not unreasonably apply Strickland in denying Denson relief. I will therefore deny Denson's habeas petition.
The standard for issuance of a certificate of appealability (COA) 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):
Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
The claims in Ground 1 of Denson's second amended habeas petition, addressed on their merits in this order, do not satisfy the standard for a certificate of appealability. In addition, I have reviewed my order of September 14, 2018 (ECF No. 49), and a certificate of appealability is unwarranted with respect to the procedural ruling in that order regarding Ground 2 of Denson's second amended habeas petition. Neither the ruling in this order, nor the ruling in my September 14, 2018 order, is reasonably debatable. I therefore deny Denson a certificate of appealability.
IT IS THEREFORE ORDERED that the petitioner's Second Amended Petition for Writ of Habeas Corpus
IT IS FURTHER ORDERED that the petitioner is denied a certificate of appealability.
IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
