United States District Court, D. Nevada
HOWARD D. McKIBBEN, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion (#22) to dismiss, which was filed in conjunction with the answer pursuant to the scheduling order, and for a final decision.
Petitioner James Henry Green challenges his 2008 Nevada state conviction, pursuant to a jury verdict, of battery with the use of a deadly weapon. He challenged the judgment of conviction in the state courts on direct appeal and state post-conviction review.
Standard of Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating state-court rulings that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that a decision was incorrect. 131 S.Ct. at 1411. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court based on the record presented to the state courts; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 131 S.Ct. at 1398-1401.
A state court decision on the merits is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." 540 U.S. at 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.
A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, AEDPA requires substantially more deference to the state court's determination:
.... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.
The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 131 S.Ct. at 1398.
Ground 1: Effective Assistance of Counsel - Failure to Seek Recusal of Trial Judge
In Ground 1, petitioner alleges that he was denied effective assistance of trial counsel when counsel did not seek recusal of the trial judge for alleged bias and prejudice. Green alleges that the judge showed alleged bias toward him when he made various rulings against Green's position in prior cases which petitioner maintains were erroneous. He alleges that he filed a proper person motion to disqualify the trial judge. See #18, at 3.
The state supreme court denied the claim presented to that court on the following basis:
... [A]ppellant claimed that trial counsel was ineffective for failing to file a motion to disqualify Judge Bell. Appellant failed to demonstrate that counsel was deficient or that he was prejudiced. Beyond his own blanket assertions, appellant presented no facts to demonstrate why Judge Bell was not competent to preside over his trial. Id . The fact that defendant had appeared before Judge Bell in previous matters did not warrant disqualification. See NRS 1.230. Therefore, the district court did not err in denying this claim.
#23, Ex. 25, at 2.
The Court is not persuaded that Ground 1 is unexhausted. To the extent, arguendo, that petitioner presents additional factual specifics that were not presented to the state supreme court, the additional allegations do not fundamentally alter the claim. As discussed below, the claim as articulated in both state and federal court is without merit.
The state supreme court's rejection of the claim was neither contrary to nor an unreasonable application of clearly established federal law.
On a claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). He must demonstrate that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's defective performance caused actual prejudice. On the performance prong, the issue is not what counsel might have done differently but rather is whether counsel's decisions were reasonable from his perspective at the time. The court starts from a strong presumption that counsel's conduct fell within the wide range of reasonable conduct. On the prejudice prong, the petitioner must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).
While surmounting Strickland 's high bar is "never an easy task, " federal habeas review is "doubly deferential" in a case governed by AEDPA. In such cases, the reviewing court must take a "highly deferential" look at counsel's performance through the also "highly deferential" lens of § 2254(d). Pinholster, 131 S.Ct. at 1403 & 1410.
In the present case, inter alia, it clearly was not deficient performance - particularly under the foregoing deferential review standard - for counsel to fail to seek recusal of the state trial judge on the basis that the judge allegedly was biased against Green because he had ruled against him allegedly erroneously on issues in prior cases. The state supreme court's holding on the underlying substantive issue that such allegations did not provide a basis for disqualification of the trial judge under Nevada state law is binding in this Court. The Supreme Court of Nevada is the final arbiter of Nevada state law. Moreover, it is established law as well in federal court that a litigant's dissatisfaction with a judge's prior adverse rulings against the litigant do not provide a basis for disqualification of the judge. See, e.g., United States v. Studley, 783 F.2d 934, 939-40 (9th Cir. 1986). A fortiorori, there was not a reasonable probability of a different outcome in petitioner's trial proceedings but for counsel's failure to pursue such a baseless challenge.
The state supreme court's rejection of this claim accordingly was not an objectively unreasonable application of Strickland or other clearly established federal law.
Ground 1 therefore does not provide a basis for federal habeas relief.
Ground 2: Commitment Order
In Ground 2, petitioner alleges that he was denied rights to due process and a fair trial in violation of the Fourteenth Amendment when the state trial court issued an allegedly defective order of commitment of petitioner to a state psychiatric hospital. He alleges that the true purpose of the resulting delay was to give the State more time to file additional charges against him.
The Court is not persuaded that the constitutional claim is unexhausted. The state supreme court held that the corresponding substantive claims presented on state postconviction review were procedurally barred under N.R.S. 34.810(1)(b) because they could have been raised on direct appeal but were not. #23, Ex. 25, at 3-4.
Under the procedural default doctrine, federal review of a habeas claim may be barred if the state courts rejected the claim on an independent and adequate state law ground due to a procedural default by the petitioner. Review of a defaulted claim will be barred even if the state court also rejected the claim on the merits in the same decision. Federal habeas review will be barred on claims rejected on an independent and adequate state law ground unless the petitioner can demonstrate either: (a) cause for the procedural default and actual prejudice from the alleged violation of federal law; or (b) that a fundamental miscarriage of justice will result in the absence of review based upon a showing, in a noncapital case, of actual innocence. See, e.g., Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003).
To demonstrate cause, the petitioner must establish that some external and objective factor impeded efforts to comply with the state's procedural rule. E.g., Murray v. Carrier, 477 U.S. 478, 488 (1986); Hivala v. Wood, 195 F.3d 1098, 1105 (9th Cir. 1999). To demonstrate prejudice, he must show that the alleged error resulted in actual harm. E.g., Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). Both cause and prejudice must be established. Murray, 477 U.S. at 494.
Petitioner urges that he can demonstrate cause to overcome the procedural default because the state courts appointed trial counsel as appellate counsel over his objection and denied him his purported right to self-representation on the direct appeal. #28, at 2-7.
Petitioner's argument is fundamentally flawed. Petitioner had no right to represent himself on a direct appeal as opposed to at trial. Martinez v. Court of Appeal of California, 528 U.S. 152 (2000). There was nothing improper constitutionally or otherwise in the state court orders appointing trial counsel as appellate counsel and denying requests by petitioner to present papers pro se on the represented appeal. A represented defendant has no right to have pro se filings considered because a criminal defendant has no constitutional right to both self-representation and the assistance of counsel in the same proceeding. See, e.g., United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir.1987); United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir.1981). Petitioner had no more right to dictate who represented him on direct appeal than he had a right, with regard to the claims in Ground 1, to dictate which judge presided over his trial.
Petitioner further contends that he can demonstrate cause because appellate counsel did not consult with petitioner and did not pursue the claims that he wanted to pursue on appeal. Green maintains that counsel had a conflict of interest and that there was an irrevocable conflict between himself and counsel because counsel would not pursue the claims that he wanted counsel to pursue. Petitioner attaches with his reply a copy of a proper person motion seeking to remove appellate counsel. He alleged therein that trial counsel had a conflict of interest because he actively assisted the prosecution in making a case against him and did not seek the recusal of the trial judge. #28, at 2-3, 7 & 14-16.
Petitioner's argument again is flawed. A defendant does not have a constitutional right to have appointed appellate counsel present every nonfrivolous issue requested by the defendant. See Jones v. Barnes, 463 U.S. 745 (1983). A conclusory allegation that counsel had a conflict of interest because he allegedly assisted the prosecution in obtaining a conviction provided no basis either for removal of counsel or for a demonstration of cause to overcome a procedural default. Counsel's failure to pursue claims that petitioner wanted to pursue did not give rise to an irrevocable conflict demonstrating a basis for cause. Clearly, a failure to pursue a baseless appellate claim seeking the disqualification of the trial ...