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Lewis v. Palmer

United States District Court, D. Nevada

March 23, 2015

KENYON JOVANI LEWIS, Petitioner,
v.
JACK PALMER, et al., Respondents.

ORDER

LARRY R. HICKS, District Judge.

This is a counseled amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF #15). Now before the court is respondents' answer (ECF #27). Petitioner filed a reply to the answer (ECF #31).

I. Procedural History and Background

On December 15, 2006, the State filed an indictment against petitioner for conspiracy to violate the controlled substance act; trafficking in a controlled substance; unlawful possession of a firearm; and possession of a short-barreled shotgun. Exh. 1.[1] At his arraignment on December 21, 2006, petitioner pleaded not guilty to all charges. Exh. 2 at 1. On March 8, 2007, the State sought a superseding indictment, which it filed on March 9, 2007. Exhs. 6-7. Petitioner pled not guilty to the superseding indictment. Exh. 2 at 3-4. A jury found petitioner guilty on May 23, 2007. Exh. 22.

On July 9, 2007, petitioner appeared for sentencing. Exh. 2 at 11. The district court imposed the following concurrent prison terms: count I (conspiracy to violate the controlled substances act) - twelve to thirty months; count II (trafficking in controlled substance, low level) - twelve to thirty-six months; count III (unlawful possession of firearm) - thirteen to sixty months; count IV (trafficking in controlled substance, high level) - life with the possibility of parole after ten years; count V (possession of short-barreled shotgun) - nineteen to forty-eight months; count VI (unlawful possession of firearm) - sixteen to seventy-two months; count VII (unlawful possession of firearm) - sixteen to seventy-two months; and count VIII (trafficking in controlled substance, low level) - nineteen to forty-eight months. Exh. 26; see also Exh. 2 at 12-13. Judgment of conviction was filed on July 19, 2007. Exh. 26.

Petitioner appealed, and the Nevada Supreme Court affirmed petitioner's convictions on January 5, 2009. Exh. 55. Remittitur issued on January 30, 2009. Exh. 59.

Petitioner filed a pro se state postconviction petition for writ of habeas corpus on June 26, 2008. Exh. 42. The state district court did not conduct a hearing and entered a written order denying the petition on March 30, 2009. Exh. 60. The Nevada Supreme Court affirmed the denial of the petition on November 23, 2009, and remittitur issued on December 18, 2009. Exhs. 68, 70.

On December 14, 2009, petitioner dispatched his petition for writ of habeas corpus to this court (ECF #4). This court granted petitioner's motion for appointment of counsel, and petitioner, through counsel, filed an amended petition (ECF #s 3, 15). Respondents have answered and argue that petitioner's ineffective assistance of counsel claims must be denied pursuant to the Antiterrorism and Effective Death Penalty Act (ECF #27).

II. Legal Standards

A. Antiterrorism and Effective Death Penalty Act

28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:

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).

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)). This court's ability to grant a writ is limited to cases where "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011).

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 (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." Andrade, 538 U.S. at 74 (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).

In determining whether a state court decision is contrary to 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). Further, "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).

B. Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective assistance of counsel has the burden of demonstrating that (1) the attorney made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) that the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362, 390-91 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is "probability sufficient to undermine confidence in the outcome." Id. Additionally, any review of the attorney's performance must be "highly deferential" and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner's burden to overcome the presumption that counsel's actions might be considered sound trial strategy. Id.

Ineffective assistance of counsel under Strickland requires a showing of deficient performance of counsel resulting in prejudice, "with performance being measured against an objective standard of reasonableness, ... under prevailing professional norms." Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations omitted).

If the state court has already rejected an ineffective assistance claim, a federal habeas court may only grant relief if that decision was contrary to, or an unreasonable application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

The United States Supreme Court has described federal review of a state supreme court's decision on a claim of ineffective assistance of counsel as "doubly deferential." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (quoting Knowles v. Mirzayance, 129 S.Ct. 1411, 1413 (2009)). The Supreme Court emphasized that: "We take a highly deferential' look at counsel's performance.... through the deferential lens of § 2254(d).'" Id. at 1403 (internal citations omitted). Moreover, federal habeas review of an ineffective assistance of counsel claim is limited to the record before the state court that adjudicated the claim on the merits. Cullen, 131 S.Ct. at 1398-1401. The United States Supreme Court has specifically reaffirmed the extensive deference owed to a state court's decision regarding claims of ineffective assistance of counsel:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential, " id. at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is "doubly" so, Knowles, 556 U.S. at ___, 129 S.Ct. at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S. at ___, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington, 131 S.Ct. at 788. "A court considering a claim of ineffective assistance of counsel must apply a strong presumption' that counsel's representation was within the wide range' of reasonable professional assistance." Id. at 787 (quoting Strickland, 466 U.S. at 689). "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Id. (internal quotations and citations omitted).

III. Instant Petition

As discussed below, the court has considered the parties' arguments as set forth in the amended petition, answer, and reply, as well as carefully reviewed the record, and concludes that petitioner's claims of ineffective assistance of counsel lack merit and shall be denied.

Ground 1

In grounds 1(A) - (J) petitioner alleges that his trial counsel rendered ineffective assistance in violation of his Sixth and Fourteenth Amendment rights.

Ground 1(A)

Petitioner claims that counsel was ineffective for failing to file a motion to suppress evidence found in the vehicle (#15, pp. 12-13). He argues that police officers did not have a valid reason to stop the vehicle petitioner was driving, and counsel was deficient in failing to challenge the existence of probable cause for the stop. Id. at 12. Petitioner contends that officers admitted at the arrest that they stopped the car because the plates were registered to a female and no female was in the car. Id. Petitioner claims counsel ...


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