United States District Court, D. Nevada
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.
I. PROCEDURAL HISTORY
A. Arraignment and Sentencing
On May 4, 2006, by way of information, Petitioner was charged with felony driving under the influence in violation of NRS 484.379 and 484.3792, in the Second Judicial District Court for the State of Nevada. (Exhibit 3.) Based on a 2005 amendment to NRS 484.3792, Petitioner was charged with a felony because he had a prior felony conviction for driving under the influence from August 15, 1997, for an offense that occurred on May 17, 1997. (Exhibit 5, at pp. 3-4.) On May 16, 2006, at arraignment, Petitioner entered a plea of guilty to one count of the felony offense of driving under the influence, in exchange for the State's agreement to recommend a sentence of no more than 24 to 60 months in the custody of the Nevada Department of Corrections. (Exhibits 4 & 5.)
While conducting a thorough plea canvass, the state district court confirmed that Petitioner was aware of the mandatory minimum penalties (2 years in prison and a $2, 000 fine) and the possible maximum penalties (15 years in prison and a $5, 000 fine) for the offense to which he was pleading guilty. (Exhibit 5, at pp. 5-12.) The court confirmed that Petitioner understood that he would not be eligible for probation, that he read and understood the executed guilty plea memorandum, that he had sufficient time to review his case with his attorney, and that he was satisfied with the legal services provided by his attorney. ( Id., at pp. 6-8.) Petitioner further confirmed that he understood that he had a right to a trial by jury, which he was waiving by pleading guilty, that he was waiving his right to confront his accusers, to call witnesses in his favor, and to remain silent. ( Id., at p. 9.) Petitioner confirmed to the court that he understood that the court was not bound by the plea agreement and that no one made any promises or threats that induced him to enter a plea of guilty. ( Id., at pp. 9-10.)
After Petitioner reiterated his desire to plead guilty to the charge of felony DUI, the prosecutor recited the elements of the charges, including that Petitioner's 1997 conviction for felony DUI was the basis for an enhancement. (Exhibit 5, at p. 11.) Petitioner entered a plea of guilty to the charge of felony DUI, and the state district court found that Petitioner entered his plea based on a knowing, voluntary, and intelligent waiver of his constitutional rights. ( Id., at p. 12.)
Prior to sentencing, Petitioner submitted a letter to the court explaining the circumstances that led up to the commission of the underlying offense, asking the court to be lenient in imposing sentence. (Exhibit 8.) At the sentencing hearing on June 29, 2006, Petitioner appeared with his attorney. (Exhibit 9.) At sentencing, the court acknowledged that it had received and reviewed Petitioner's letter prior to the hearing. (Exhibit 9, at p. 3.) The State then provided the court with a copy of Petitioner's 1997 judgment of conviction for felony DUI. ( Id., at p. 4.) When given the opportunity, Petitioner made no objection to the constitutional sufficiency of the 1997 judgment of conviction, which was admitted into evidence, and the court confirmed that the judgment of conviction passed constitutional muster. ( Id., at p. 4.) The court then allowed the defense to argue in mitigation of punishment, during which defense counsel made reference to Petitioner's letter. ( Id. ) The court imposed a sentence of 72 to 180 months in the custody of the Nevada Department of Corrections, as well as monetary fines. ( Id., at p. 6; Exhibit 10.) The judgment of conviction was entered on June 29, 2006. (Exhibit 10.)
B. Direct Appeal
1. Nevada Supreme Court Case No. 47775
Petitioner filed a timely notice of appeal on July 25, 2006, which was issued Nevada Supreme Court Case No. 47775. (Exhibit 11.) By and through counsel, Petitioner filed a fast track statement on September 14, 2006. (Exhibit 19.) The basis of the appeal was that Petitioner had been denied his right to allocution at the sentencing hearing, in violation of NRS 176.015(2)(b). ( Id.) NRS 176.015(2)(b) provides that "[b]efore imposing sentence, the court shall... [a]ddress the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment." Petitioner claimed that the state district court never afforded him an opportunity to make a statement. (Exhibit 19.) On November 9, 2006, the Nevada Supreme Court entered an order of affirmance in Case No. 47775. (Exhibit 21.) The Nevada Supreme Court concluded that "although the district court did not comply with NRS 176.15(2)(b), Larson cannot demonstrate that the district court's failure amounted to reversible plain error." (Exhibit 21, at p. 2 (footnote omitted.)). The Nevada Supreme Court affirmed Petitioner's conviction because Petitioner failed to object to any error in the trial court and he did not point to any specific information that would have affected his sentence. ( Id. ) Petitioner filed a motion for rehearing on November 21, 2006. (Exhibit 22.) On December 21, 2006, the Nevada Supreme Court denied a rehearing. (Exhibit 24.) Remittitur issued in Case No. 47775 on January 16, 2007. (Exhibit 29.) On December 28, 2006, Petitioner filed a petition for en banc reconsideration (Exhibit 25), which the Nevada Supreme Court denied by order filed March 1, 2007 (Exhibit 34).
2. Nevada Supreme Court Case No. 48751
On January 11, 2007, Petitioner filed a second notice of appeal, acting in pro per. (Exhibit 27.) The case was assigned Nevada Supreme Court Case No. 48751. On February 15, 2007, the Nevada Supreme Court dismissed the appeal in Case No. 48571 for lack of jurisdiction. (Exhibit 33.) Remittitur issued in Case No. 48751 on March 13, 2007. (Exhibit 35.)
C. State Post-Conviction Habeas Proceedings
On April 6, 2007, Petitioner filed a post-conviction habeas petition in the state district court. (Exhibit 37.) By order filed July 9, 2007, the state district court appointed counsel to represent Petitioner on his post-conviction habeas petition. (Exhibit 43.) On August 30, 2007, counsel filed a supplemental post-conviction habeas petition. (Exhibit 44.) The supplemental state petition asserted the following grounds for relief:
Petitioner was deprived of effective assistance of counsel within the meaning of the 6th and 14th Amendments to the United States Constitution.
(a) Ground One: Counsel failed to prepare and investigate. Due to failure to investigate, Petitioner was convicted of a felony rather than a misdemeanor DUI. Failure to move to dismiss the felony charge constituted ineffective assistance of counsel. Failure to litigate the ability to enhance this charge to a felony due to violation of the 5th Amendment Due Process Clause and the Ex Post Facto Clause of the U.S. Const. art. I, § 9, cl. 3; Nev. Const. art. 1, § 15 and the 14th Amendment was below the standard of practicing attorneys in Washoe County.
(b) Ground Two: Counsel was ineffective at sentencing for failing to insure that the Petitioner had an opportunity to address the sentencing court in mitigation of sentence. See argument herein for additional facts. Counsel failed to correct errors with the Presentence Report which allowed the District Court to rely on suspect evidence in rendering the maximum sentence available at law.
(Exhibit 44, at pp. 4-5.) Petitioner also asserted Ground Three, in which he argued that counsel failed to file a timely notice of appeal, for which he sought Lozada relief. ( Id., at p. 5.) Petitioner subsequently withdrew Ground Three at the evidentiary hearing, because Petitioner's counsel in fact perfected and pursued a direct appeal. (Exhibit 55, at p. 3.)
On January 6, 2010, the state district court held an evidentiary hearing on the supplemental post-conviction habeas petition. (Exhibit 55.) The state district judge issued a ruling from the bench, denying the petition in its entirety. (Exhibit 55, at pp. 56-57.) On March 9, 2010, the state district court entered written findings of fact, conclusions of law, and judgment. (Exhibit 56.) The court denied relief on Ground One, finding that Petitioner failed to meet both prongs of Strickland v. Washington, 466 U.S. 668 (1984), because the use of the 1997 conviction did not run afoul of the Ex Post Facto clause of the United States Constitution, the 1997 conviction's use as an enhancement was a collateral consequence that the trial court was not required to inform Petitioner of in 1997, and the use of the 1997 conviction did not violate the 1997 plea agreement. (Exhibit 56, at pp. 1-5.) The court denied relief on Ground Two because Petitioner failed to meet both prongs of Strickland regarding errors in the presentence investigation report and he failed to meet the prejudice prong of Strickland regarding his claim that he was deprived of his right to allocution. ( Id., at pp. 5-6.)
On April 20, 2010, Petitioner filed a timely notice of appeal from the denial of his post-conviction habeas petition. (Exhibit 59.) The case was assigned Nevada Supreme Court Case No. 55856. Petitioner, represented by counsel on appeal, filed a fast track statement on May 25, 2010. (Exhibit 69.) The fast track statement raised the following four grounds for relief:
1. The District Court abused its discretion when it dismissed this post-conviction action and refused to grant relief to Mr. Larson.
2. Failure to advise Mr. Larson in 1997 that any future DUI related offense would net him a felony conviction and subsequent use for enhancement purposes thereof, invalidated the 1997 plea under the Due Process Clause of the 5th Amendment.
3. The State violated the standing plea bargains of Mr. Larson. Prosecution under 2005 amendment to NRS 284.3792 violated the ex post facto Clause of the U.S. Constitution Art. I, § 10, and Nevada Constitution, Art. 1, § 15.
4. Counsel was ineffective under the 6th and 14th Ammendments when counsel failed to allow his client to address the sentencing court.
(Exhibit 69, at p. 4.) On September 29, 2010, the Nevada Supreme Court affirmed the denial of the post-conviction habeas corpus petition. (Exhibit 73.) The Nevada Supreme Court found that: (1) the 1997 plea agreement was not breached; (2) the use of the 1997 conviction as an enhancement did not constitute a violation of the Ex Post Facto Clause; (3) Petitioner's claim regarding allocution failed because he did not provide any information that "may have lead to a more lenient sentence"; and (4) he did not demonstrate that trial and appellate counsel's performance resulted in prejudice under Strickland. (Exhibit 73.) Remittitur issued in Case No. 55856 on October 27, 2010. (Exhibit 74.)
D. Federal Habeas Proceedings
Petitioner signed and submitted his federal habeas petition to this Court on January 24, 2011. (Dkt. no. 1.) The petition contains three grounds for relief, with sub-parts. Respondents moved to dismiss the petition. (Dkt. no. 8.) By order filed December 14, 2011, the Court issued an order, granting in part and denying in part, the motion to dismiss. (Dkt. no. 15.) The Court denied the motion to dismiss Grounds 1(a), 1(b), and 1(d) of the petition. ( Id. ) The Court ruled that the portion of Ground 1 that respondents identified as Ground 1(d) was actually part of Ground 1(a). ( Id. ) The Court ruled that the following claims were unexhausted: (1) Ground 1(c), in which Petitioner alleges that counsel failed to prepare and investigate; (2) Ground 2(b), in which Petitioner alleges that counsel failed to correct errors in the presentence report; and (3) the claim asserted in a portion of Ground 1 and Ground 3, regarding an untimely filing of a notice of appeal on direct appeal. ( Id. ) Petitioner was given options regarding the unexhausted claims, pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982) and Rhines v. Weber, 544 U.S. 269 (2005). ( Id. ) Petitioner filed a motion for a stay. (Dkt. no. 16.) The Court denied Petitioner's motion without prejudice to renewing it, as the motion was devoid of any argument. (Dkt. no. 18.) On May 9, 2012, Petitioner filed a sworn declaration abandoning his unexhausted grounds, including Ground 1(c), 2(b), and the claim asserted in a portion of Grounds 1 and 3, regarding an untimely filing of a notice of appeal on direct appeal. (Dkt. no. 19.) On June 8, 2012, respondents filed an answer to the remaining grounds of the petition. (Dkt. no. 20.) Petitioner was given the opportunity, but did not file a reply to the answer.
II. FEDERAL HABEAS CORPUS STANDARDS
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's ...