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Pickett v. Scillia

United States District Court, D. Nevada

July 2, 2014

CARY J. PICKETT, Petitioner,
v.
SCILLIA, et al., Respondents.

ORDER

JAMES C. MAHAN, 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

The underlying state court case arises from petitioner and a co-defendant committing a string of robberies between July and November 2009, in Las Vegas, Nevada. Petitioner faced a host of criminal charges. Petitioner waived a preliminary hearing and entered into a plea agreement. (Exhibit 3).[1] Petitioner was convicted, pursuant to a guilty plea, of the following: burglary while in possession of a firearm (count I); conspiracy to commit robbery (count II); robbery with the use of a deadly weapon (count III); and possession of a firearm by an ex-felon (count IV). (Exhibit 3). Petitioner also agreed to adjudication under the large habitual criminal statute. ( Id. ) At sentencing, the court adjudicated petitioner a habitual criminal based on seven certified judgments of prior convictions. (Exhibit 5, at p. 5). At sentencing, petitioner was sentenced to 24-60 months incarceration on count I; 24-60 months incarceration on count II; an adjudication of habitual criminality, 10-25 years incarceration, on count III; and 24-60 months incarceration on count IV. ( Id., at pp. 6-7). Counts I and III run consecutively, while counts II and IV run concurrently. ( Id. ). A second amended judgment of conviction was filed on September 24, 2010. (Exhibit 8). Petitioner did not file a direct appeal.

On January 27, 2011, petitioner filed a post-conviction habeas petition and a brief in support of the same, in the state district court. (Exhibits 9 & 10). Petitioner raised four claims: (1) trial counsel was ineffective for advising petitioner to plead guilty; (2) his plea was not knowingly and voluntarily made regarding the stipulation to habitual criminal treatment; (3) his right to due process was violated when he was adjudicated a habitual criminal; (4) counsel was ineffective during his sentencing hearing. ( Id. ). The trial court denied relief on the petition. Petitioner appealed. On May 9, 2011, the Nevada Supreme Court issued an order directing the state district court to enter a written judgment or order regarding the post-conviction habeas petition. (Exhibit 14). On May 19, 2011, the state district court entered written findings of fact, conclusions of law, and order denying the petition. (Exhibit 15). On October 5, 2011, the Nevada Supreme Court entered an order affirming the denial of the post-conviction habeas petition. (Exhibit 16).

Petitioner filed his federal habeas petition in this action on December 6, 2011. (ECF No. 1). Respondents have filed an answer. (ECF No. 9). Petitioner has filed a reply. (ECF No. 14). Most recently, petitioner has filed a motion requesting a ruling on his petition. (ECF No. 20). The court now considers the merits of the petition.

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) and (e) on the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011).

III. Discussion

A. Ground 1

Petitioner alleges that his right to due process was violated because his plea was not knowingly and voluntarily made. Petitioner claims that he could not "stipulate" to habitual criminal treatment. Petitioner raised this claim in his state habeas petition and the Nevada Supreme Court ruled that petitioner had misstated the law, and that Nevada law allowed a court to impose adjudication of habitual criminality based on a stipulation. (Exhibit 16, at p. 2). The Nevada Supreme Court further rejected the claim that his plea was not knowingly and voluntarily made, as follows:

Appellant claimed that his plea was invalid because he was not personally canvassed about the habitual criminal adjudication process and any rights he waived by stipulating to large habitual criminal treatment. Appellant further claims that he felt pressured into accepting the plea due to his co-defendant's acceptance of plea negotiations.
Appellant failed to carry his burden of establishing that the plea was not entered knowingly and intelligently. State v. Freese , 116 Nev. 1097, 1105, 13 P.3d 442, 448 (2000); Bryant v. State , 102 Nev. 268, 272, 721 P.2d 364, 368 (1986); see also Hubbard v. State , 110 Nev. 671, 675, 877 P.2d 519, 521 (1994). Appellant was properly and personally canvassed about the terms of the negotiations and the potential penalties he faced by entry of the plea. In entering his plea, appellant acknowledged that is was being entered voluntarily. Therefore, we conclude that the district court did not err in denying this claim.

(Exhibit 16, at p. 4). The factual findings of the state court are presumed correct. 28 U.S.C. § 2254(e)(1). Conclusory allegations will not overcome the presumption that the state court's findings are correct. ...


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