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Whitsett v. Humphrey

United States District Court, D. Nevada

April 29, 2014

WILLIAM WHITSETT, Petitioner,
v.
STEFANIE HUMPHREY, et al., Respondents.

ORDER

LARRY R. HICKS, 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

On May 12, 2006, an indictment was filed in the Eighth Judicial District Court for the State of Nevada, in Case No. C222265, charging petitioner with five counts of burglary, one count of attempted robbery, two counts of larceny from a person, victim age 60 or older, and one count of robbery, victim age 60 or older. (Exhibit 1).[1] On June 29, 2006, a guilty plea agreement was filed in open court which indicated that petitioner would be withdrawing his prior plea of not guilty in Case No. 222265 and would be entering a plea of guilty to one count of robbery of a victim 60 years of age or older. Pursuant to the guilty plea agreement, petitioner would be adjudicated guilty of robbery of a victim age 60 or older in Case No. C222265, and would agree to plead guilty to one count of robbery of a victim age 60 or older and burglary in Case No. C219262. As a condition of the plea, the State would have no opposition to concurrent time between the two counts in Case No. C219262, but the State would retain the right to argue for consecutive time between the charges in Case No. C219262 and the charge in Case No. C222265. (Exhibit 2, at p. 1). An amended indictment was filed on June 29, 2006, reflecting this action. (Exhibit 3).

On August 18, 2006, a judgment of conviction was filed in Case No. 222265, pursuant to a guilty plea, convicting petitioner of one count of robbery of a victim 60 years of age or older. (Exhibit 4). Petitioner was sentenced to 36 to 120 months imprisonment, plus an equal and consecutive term of 36 to 120 months imprisonment for the age-of-victim enhancement. ( Id. ).

On May 29, 2007, petitioner filed a post-conviction habeas petition in state district court. (Exhibit 5). On September 18, 2007, the state district filed an order denying the state habeas petition. (Exhibit 6). Petitioner appealed. (Exhibit 7). On April 7, 2008, the Nevada Supreme Court entered an order affirming in part, reversing in part, and remanding. (Exhibit 8). The Nevada Supreme Court's order remanded the case to the state district court "for a limited evidentiary hearing on the issue of whether appellant's counsel refused to file an appeal after being asked by appellant to do so." (Exhibit 8, at p. 7).

On August 8, 2008, an evidentiary hearing was held in the state district court on the issue of whether petitioner had directed his counsel to file an appeal on his behalf. (Exhibit 9). On August 26, 2008, the state district court issued findings of fact, conclusions of law, and order. (Exhibit 10). The state district court found that it was petitioner's attorney's practice to make a note in the file if a defendant asks to appeal, and that there was no such note in petitioner's file, indicating that no request to appeal was received. (Exhibit 10, at p. 4). Petitioner appealed this ruling. (Exhibit 11). On January 7, 2010, the Nevada Supreme Court affirmed the state district court's ruling. (Exhibit 12).

Petitioner dispatched his federal habeas petition to this Court on February 17, 2010. (ECF No. 4, at p. 1). The petition contains three grounds. ( Id. ). Respondents previously moved to dismiss Ground 3 of the petition as unexhausted. (ECF No. 8). By order filed January 26, 2011, the Court granted the motion. (ECF No. 12). Petitioner filed a motion to dismiss Ground 3 of the petition and proceed on Grounds 1 and 2, which the Court granted on June 22, 2011. (ECF No. 15). Respondents filed an answer to Grounds 1 and 2 of the petition on February 27, 2012. (ECF No. 19). Petitioner did not file a reply, despite being given an opportunity to do so.

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 consideration of this habeas petition:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

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. ___, ___, 131 S.Ct. 770, 786 (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 (9th Cir. 2000), cert. denied , 534 U.S. 944 (2001).

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) ...


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