United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
Before the court are the amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (#29) and respondents' answer (#31). The court finds that petitioner is not entitled to relief, and the court denies the petition.
Petitioner originally was charged in state court with one count of burglary and one count of battery with use of a deadly weapon resulting in substantial bodily harm. Ex. 15 (#10). Petitioner represented himself. On the first day of trial, just before jury selection, the prosecution was allowed to amend the information. Petitioner was charged with one count of burglary-that charge did not change-and one count of battery constituting domestic violence with use of a deadly weapon resulting in substantial bodily harm; the emphasized phrase is the difference in the charges between the original information and the amended information. Ex. 27 (#12).
At trial, the victim testified that she and petitioner had been in a dating relationship from February to April, 2008. Ex. 28, at 92-94 (#12). On May 27, 2008, petitioner was present at her residence. Petitioner bit her. Id. at 101 (#12). Then he choked her. Id. at 104-05. He bit her thumb. Id. at 108. In a struggle, she pushed petitioner out of the residence. Id. at 110. Petitioner kicked and broke the kitchen window. Id. at 119. Petitioner re-entered the residence. Petitioner grabbed a pan and hit her on the head. Id. at 121-23. Among other injuries, the victim had several lacerations on her head, which required 27 staples to close, a concussion, and fluid on her brain. Id. at 143-45. The jury found petitioner guilty on both counts, and he was convicted. Ex. 34 (#12).
Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 48 (#11). Petitioner pursued state post-conviction relief, but none of the grounds in that petition relate to the sole remaining ground in this action.
After conclusion of state post-conviction proceedings, which are not relevant to the sole remaining ground of the amended petition, petitioner commenced this action. The original petition (#6) contained seven (7) grounds. Respondents filed a motion to dismiss (#9), arguing various procedural defenses. The court granted the motion in part (#21), finding that all grounds but ground 5 were not exhausted in the state courts. The court denied petitioner's request for a stay of the action while he returned to state court (#28). Petitioner filed an amended petition (#29), raising the sole unexhausted ground. Respondents' answer (#31) followed.
Congress has limited the circumstances in which a federal court can grant relief to a petitioner who is in custody pursuant to a judgment of conviction of a state court.
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). "By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter , 131 S.Ct. 770, 784 (2011).
Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor , 529 U.S. 362, 412 (2000); or that it "involved an unreasonable application of" such law, § 2254(d)(1); or that it "was based on an unreasonable determination of the facts" in light of the record before the state court, § 2254(d)(2).
Richter , 131 S.Ct. at 785. "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.'" Id . (citation omitted). "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." Id . (citation omitted).
[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in ...