United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This habeas corpus action is brought by Carl Otis Sullivan, who is serving prison terms on convictions in Nevada's Second Judicial District Court, based on guilty pleas pursuant to a plea agreement, for robbery, burglary, and possession of stolen property. Sullivan's convictions all result from his burglary of a Reno, Nevada, home, his robbery of an automobile, and his possession of stolen property taken from the home. Sullivan's amended habeas petition is before the Court on the merits of his claims. The Court will deny all the claims asserted by Sullivan in his amended petition, and the Court will deny Sullivan a certificate of appealability.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As Sullivan's conviction was upon a guilty plea, before trial, the facts regarding his crimes have not been fully developed. However, the presentence investigation report, prepared for purposes of Sullivan's sentencing, and filed as an exhibit by him in this action, states the following:
The following information has been obtained from the file of the Washoe County District Attorney's Office which includes reports of the Reno Police Department.
At approximately 10:05 A.M., on December 4, 1997, officers of the Reno Police Department were dispatched to 543 California Avenue, regarding a vehicle theft which had just occurred. Dispatch was informed that the vehicle was taken by a suspect wielding a knife and a description of the vehicle was broadcast.
At approximately 10:15 A.M., the Washoe County Sheriff's Office helicopter "Raven" located the vehicle in the area of Swope Middle School and units of the Reno Police Department responded. A high-risk stop was made and the lone occupant, later identified as the defendant, was removed from the vehicle. The defendant was restrained and Mr. Sullivan spontaneously stated, "I knew I had nowhere to go when I heard the helicopter over me." The officers located a black leather sheath containing a black handled knife with a blade of approximately four inches on the defendant's belt.
Other officers of the Reno Police Department contacted the victim at his residence. The victim informed that he had arrived home at approximately 10:00 A.M., and when he entered the garage, observed the suspect later identified as the defendant, leaning against his Mercedes Benz. The victim said he commanded the suspect to leave, at which time Mr. Sullivan unsheathed his knife and ran towards the victim in an attempt to stab him. The victim then backed out of the garage.
The victim stated that the defendant then got into his Mercedes Benz and backed out of the garage. The victim related he then closed the gate to the street and as he was doing so, the defendant accelerated the vehicle, causing the victim to get out of the way. The vehicle then crashed through the gate and portions of the gate struck the victim and his dog. The victim received an injury to his leg, but he declined medical attention.
Investigation at the scene disclosed that Mr. Sullivan had apparently gone through two downstairs bedrooms and one upstairs bedroom looking for items to steal. A safe of approximately 24" × 24" was found in the garage and the victim said that it had previously been stored upstairs. The point of entry was on the east side with a screen being removed and the window broken.
The officers recovered stolen property valued in excess of $99, 000 from the defendant's person and inside the victim's stolen vehicle.
The property included jewelry, precious coins, two mink coats, sterling silver silverware, and cameras.
The victim was brought to the scene and identified the items taken from the vehicle and from the defendant as belonging to him. The victim also positively identified the defendant, and Mr. Sullivan when hearing the identification stated, "Well, no shit, Sherlock." The victim's property was photographed and returned to the victim, excluding his vehicle. The defendant was arrested and transported to the Washoe County Jail. During the booking process, the defendant asked "How much time do you think I will get" and "How much time can you get for burgin a house." When the defendant was advised of all charges, he stated, "I've really done it to myself this time." The defendant was then booked without further incident.
Presentence Investigation Report, Exhibit 44, pp. 5-7; see also Transcript of Proceedings of August 6, 2003, Exhibit 30, pp. 49-50, 70 (testimony of Sullivan at evidentiary hearing, recounting his commission of the crimes).
Sullivan waived a preliminary hearing, and on December 29, 1997, was charged by information with robbery with the use of a deadly weapon, burglary, and possession of stolen property. See Exhibits 2 and 3.
On January 7, 1998, Sullivan entered a plea agreement. Guilty Plea Memorandum, Exhibit 4. Sullivan agreed to plead guilty to the charges in the information. Id. The State agreed, with regard to Sullivan's sentence, that it would "concur with the recommendation of the Division of Parole and Probation." Id. at 4. The State also agreed not to pursue any other charges against Sullivan. See Transcript of Proceedings of January 8, 1998, Exhibit 5, pp. 2-4. Additionally, the State agreed not to pursue the deadly-weapon enhancements. Id. at 3-4. On January 7, 1998, Sullivan entered his guilty pleas, pursuant to the plea agreement. See id.
Sullivan's sentencing hearing was on February 13, 1998. See Transcript of Proceedings of February 13, 1998, Exhibit 7. The Division of Parole and Probation recommended: a prison term of 156 months, with minimum parole eligibility of 35 months, for the robbery; a consecutive prison term of 96 months, with minimum parole eligibility of 22 months, for the burglary; and a consecutive prison term of 96 months, with minimum parole eligibility of 22 months, for possession of stolen property. Presentence Investigation Report, Exhibit 44, p. 12. At the sentencing hearing, Sullivan's counsel presented to the court a letter from a doctor, regarding Sullivan's substance abuse, its effect on his commission of the crimes, and his willingness to seek treatment, and counsel argued for a lesser sentence, specifically, that the three sentences run concurrently. See Transcript of Proceedings of February 13, 1998, Exhibit 7, pp. 3-5. The prosecutor responded, discussing Sullivan's significant prior criminal record, the serious nature of the crimes he committed in this case, Sullivan's lack of remorse, and the danger he posed to the community, and the prosecutor asked the court to impose consecutive sentences as recommended by the Division of Parole and Probation. Id. at 5-7. The victims then made statements. Id. at 7-12. Sullivan also made a statement. Id. at 12-14. The court sentenced Sullivan as recommended by the Division of Parole and Probation: a prison term of 156 months, with minimum parole eligibility of 35 months, for the robbery; a consecutive prison term of 96 months, with minimum parole eligibility of 22 months, for the burglary; and a consecutive prison term of 96 months, with minimum parole eligibility of 22 months, for possession of stolen property. Id. at 14-15; see also Order of Amended Judgment, Exhibit 23. The court also ordered Sullivan to pay restitution in the amount of $12, 000. Transcript of Proceedings of February 13, 1998, Exhibit 7, p. 14; Order of Amended Judgment, Exhibit 23.
Sullivan appealed. See Notice of Appeal, Exhibit 9. On December 13, 1999, the Nevada Supreme Court determined that there was an error in the judgment with respect to the robbery conviction; Sullivan pled guilty to robbery without use of a deadly weapon, but the judgment of conviction indicated that the robbery was with use of a deadly weapon. Sullivan v. State, 115 Nev. 383, 390-91, 990 P.2d 1258 (1999) (the Nevada Supreme Court's opinion is found in the record at Exhibit 12). The court affirmed, but remanded the case to the state district court for the limited purpose of correcting the clerical mistake in the judgment. Id. at 391; see also Sullivan v. State, 120 Nev. 537, 538, 96 P.3d 761 (2004). On January 3, 2000, the state district court entered a corrected judgment. Exhibit 15. The Nevada Supreme Court's remittitur issued on January 10, 2000. Exhibit 14.
On May 10, 2000, Sullivan filed, in the state district court, a petition for writ of habeas corpus. Exhibit 16.
On December 11, 2001, while Sullivan's state-court habeas petition was pending in the state district court, apparently realizing that the corrected judgment was entered before the Nevada Supreme Court's remittitur issued, the state district court vacated the corrected judgment (Exhibit 22), and entered a new Order of Amended Judgment (Exhibit 23).
Counsel was appointed for Sullivan for his state-court habeas petition, and counsel supplemented his petition. Exhibits 24, 49. On August 6, 2003, the state district court held an evidentiary hearing. Transcript of Proceedings of August 6, 2003, Exhibit 30. Sullivan's trial counsel testified. Id. at 7-45. Sullivan also testified. Id. at 46-71. In an order entered September 17, 2003, the state district court denied Sullivan's petition. Findings of Fact, Conclusions of Law and Judgment, Exhibit 32.
Sullivan appealed. See Notice of Appeal, Exhibit 34; Fast Track Statement, Exhibit 36. The Nevada Supreme Court affirmed on March 5, 2004. Sullivan v. State, 120 Nev. 537, 96 P.3d 761 (2004) (the Nevada Supreme Court's opinion is found in the record at Exhibit 42).
This court received from Sullivan a pro se habeas petition, and a request for appointment of counsel, on March 31, 2005 (dkt. nos. 8, 9). Counsel was appointed (dkt. nos. 7, 10). On January 19, 2006, counsel filed an amended habeas petition on Sullivan's behalf (dkt. no. 14).
On February 22, 2006, respondents filed a motion to dismiss (dkt. no. 28), arguing that Sullivan's petition is untimely, that certain claims are unexhausted, and that certain claims are barred by the doctrine of procedural default. On August 21, 2006, the Court granted the motion to dismiss, ruling Sullivan's petition barred by the statute of limitations. Order entered August 21, 2006, dkt. no. 43. In that order, the Court also ruled that the petition was not barred by the procedural default doctrine. Id. The Court did not address the question of the exhaustion of Sullivan's claims in state court. Id. The action was dismissed. Id. ; Judgment, dkt. no. 44.
Sullivan appealed (dkt. no. 45). The court of appeals reversed in part, and remanded the case to this Court for further consideration of the potential impact of the intervening authority in Harris v. Carter, 515 F.3d 1051 (9th Cir.), cert. denied, 555 U.S. 967 (2008), upon this Court's ruling that Sullivan had not established a basis for equitable tolling. Memorandum Order of Court of Appeals, dkt. no. 53.
On remand, on March 31, 2009, this Court again granted the motion to dismiss, and dismissed the action as time-barred. Order entered March 31, 2009, dkt. no. 64; Judgment, dkt. no. 65.
Sullivan again appealed (dkt. no. 66). On July 21, 2010, the court of appeals vacated the judgment and remanded, ruling that Sullivan was entitled to equitable tolling and that his federal habeas petition was, therefore, timely filed. Memorandum Order of Court of Appeals, dkt. no. 76.
Following that remand, respondents filed their answer on February 24, 2011 (dkt. no. 85), and Sullivan filed a reply on May 2, 2011 (dkt. no. 90).
III. STANDARD OF REVIEW OF MERITS OF SULLIVAN'S CLAIMS
28 U.S.C. § 2254(d) sets forth the standard of review, applicable to this case, under the Antiterrorism and Effective Death Penalty Act (AEDPA):
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.
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).
The Supreme Court has further instructed that "[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, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has also emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. ( citing Lockyer, 538 U.S. at 75; see also Cullen v. Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the AEDPA 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).
The state court's "last reasoned decision" is the ruling subject to section 2254(d) review. Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). If the last reasoned state-court decision adopts or substantially incorporates the reasoning from a previous state-court decision, a federal habeas court may consider both decisions to ascertain the state court's reasoning. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc).
If the state supreme court denies a claim but provides no explanation for its ruling, the federal court still affords the ruling the deference mandated by section 2254(d); in such a case, the petitioner is entitled to federal habeas corpus relief only if "there was no reasonable basis for the state court to deny relief." Harrington, 131 S.Ct. at 784.
The analysis under section 2254(d) looks to the law that was clearly established by United States Supreme Court precedent at the time of the state court's decision. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
A. Ground 1
In Ground 1 of his amended habeas petition, Sullivan claims that he was "deprived of his due process rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution by the State's breach of its plea agreement with Sullivan during the sentencing proceedings." Amended Petition (dkt. no. 14), p. 5.
In the plea agreement, the State agreed, with regard to Sullivan's sentence, that it would "concur with the recommendation of the Division of Parole and Probation." Guilty Plea Memorandum, Exhibit 4, p. 4. The Division of Parole and Probation recommended consecutive sentences. Presentence Investigation Report, Exhibit 44, p. 12. Sullivan's counsel presented to the court a letter from a doctor, regarding Sullivan's substance abuse, its effect on his commission of the crimes, and his willingness to seek treatment, and he argued for a lesser sentence, specifically, that the three sentences run concurrently. See Transcript of Proceedings of February 13, 1998, Exhibit 7, pp. 3-5. The prosecutor responded to that argument, discussing Sullivan's significant prior criminal record, the serious nature of the crimes he committed in this case, Sullivan's lack of remorse, and the danger he posed to the community, and the prosecutor asked the court to impose consecutive sentences as recommended by the Division of Parole and Probation. Id. at 5-7. Citing Santobello v. New York, 404 U.S. 257 (1971), Sullivan contends that this amounted to a breach of the plea agreement, in violation of his federal constitutional rights.
Regarding this claim, the Nevada Supreme Court ruled as follows:
The issue before this court is whether the state breaches an agreement to concur with the recommendation of the Division of Parole and Probation by advocating in favor of the recommendation. [Footnote omitted.] We conclude that the state may advocate in favor of a sentence that it has agreed to recommend as part of a plea agreement so long as the state does not explicitly or implicitly seek to persuade the sentencing court to impose a harsher sentence than that which the state agreed to recommend. We further conclude that the state did not breach the plea agreement.
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The state charged appellant Carl Otis Sullivan by information with one count each of robbery with the use of a deadly weapon, burglary, and possession of stolen property. Pursuant to plea negotiations, Sullivan agreed to plead guilty to the charges. In exchange for Sullivan's guilty plea, the state agreed to concur with the recommendation of the Division of Parole and Probation. The district court conducted a thorough plea canvass and accepted Sullivan's guilty plea. The Division of Parole and Probation prepared a presentence report. Therein, the Division recommended the following sentences, all to be served consecutively: 35 to 156 months for robbery; 22 to 96 months for burglary; and 22 to 96 months for possession of stolen property. At sentencing, defense counsel argued in favor of concurrent sentences based on a letter from a doctor, which had become available after the presentence report had been prepared. The letter indicated that the underlying offenses were the result of a long-term drug addiction and that Sullivan had accepted responsibility for his actions and addiction, and was willing to seek treatment. Counsel argued that giving Sullivan concurrent sentences would still give him considerable prison time but would also give him an opportunity to get treatment sooner rather than later. In response, the prosecutor addressed Sullivan's "quite incredible criminal history" and the serious nature of the charged offenses. The prosecutor further suggested that if Sullivan were truly serious about rehabilitation, then he could pursue that avenue after his release from prison regardless of the length of the sentence. The prosecutor concluded: "The only thing he has proven is that his level of violence is most certainly escalating and certainly putting this community in a great deal of danger. As a result, the consecutive sentences are appropriate, your Honor." Sullivan did not object to any of the prosecutor's comments.
The prosecutor then informed the court that the victims were present and wished to address the court. The court swore in the victims, who testified about the impact that the crimes had on their lives. The prosecutor did not participate in their testimony. At the conclusion of the victim impact testimony, the prosecutor reiterated that the state requested the court to follow the Division's recommendation.
The district court followed the Division's recommendation and sentenced Sullivan to imprisonment for 35 to 156 months for robbery, a consecutive 22 to 96 months for burglary, and a consecutive 22 to 96 months for possession of stolen property. [Footnote omitted.] Sullivan filed this timely appeal.
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The general principles governing the state's obligation to honor the terms of a plea agreement are well settled. "When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). This court has held the state to the "most meticulous standards of both promise and performance" in fulfillment of its part of a plea bargain. Kluttz v. Warden, 99 Nev. 681, 683, 669 P.2d 244, 245 (1983). The violation of either the terms or the spirit of the agreement equires reversal. Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986).
A plea agreement is construed according to what the defendant reasonably understood when he or she entered the plea. Statz v. State, 113 Nev. 987, 993, 944 P.2d 813, 817 (1997). Here, the state agreed to concur in the recommendation of the Division of Parole and Probation. The initial question is whether Sullivan could have reasonably understood the plea agreement to preclude the state from advocating in ...