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Dunlap v. Palmer

United States District Court, D. Nevada

March 24, 2015

GEORGE TYRONE DUNLAP, JR., Petitioner,
v.
PALMER, WARDEN, et al., Respondents.

ORDER

ROBERT C. JONES, District Judge.

This is an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a Nevada state prisoner, is proceeding pro se (ECF #47). Now before the court is respondents' answer to the remaining ground in the petition (ECF #62). Petitioner filed a reply to the answer (ECF #63).

I. Procedural History and Background

On July 24, 2002, the State charged petitioner with three counts of first-degree kidnaping, three counts of sexual assault with a minor under fourteen years of age, three counts of lewdness with a child under age fourteen, two counts of coercion, and one count of battery with the intent to commit sexual assault. Exh. 5.[1] At an initial arraignment held July 30, 2002, petitioner pleaded not guilty to all charges. Exh. 4. Petitioner was represented by the public defender's office until December 5, 2002, when, after holding a hearing and canvassing petitioner, the court allowed petitioner to proceed representing himself with the public defender's office as stand-by counsel. Id. Petitioner remained pro se until June 30, 2003, when the court re-appointed the public defender's office to represent petitioner. Id. On October 21, 2003, the court granted the public defender's motion to withdraw as counsel, and on February 13, 2004, the court appointed alternate counsel. Id.; Exh. 49. Alternate counsel continued to represent petitioner despite petitioner's numerous motions to dismiss him and appoint other counsel. Exhs.4, 29, 30, 77, 79, 83. On August 5, 2005, alternate counsel moved to withdraw as counsel of record, however, on August 22, 2005, at a hearing on the motion, alternate counsel stated that he had just received a plea offer from the State that he wished to discuss with petitioner. Exhs. 85, 31.

On August 23, 2005, the State filed an amended information charging petitioner with two counts of attempted sexual assault (counts one and two) and one count of attempted lewdness with a minor under the age of fourteen (count three). Exh. 86. On that same day, petitioner entered an Alford plea, as provided by North Carolina v. Alford, 400 U.S. 25 (1970), to several charges pursuant a plea agreement with the State. Exhs. 32, 33. Under the agreement, petitioner agreed to enter an Afford plea to all counts in the amended information.[2] Id. In exchange for petitioner's plea, the State agreed to retain the right to argue at sentencing but to cap the sentence for each count at ten years. Id.

Prior to sentencing, petitioner filed a pro se motion to withdraw his plea and to dismiss his counsel. Exhs. 87, 88. In response to the motions, the court appointed an independent attorney to review the plea agreement. Exh. 4. At a hearing held, October 26, 2005, independent counsel advised the court that he found no legal basis on which petitioner could withdraw his plea. Id. The court ultimately denied petitioner's pro se motions and proceeded with sentencing on January 11, 2006. Id. The court sentenced petitioner to four to ten years on count one; four to ten years on count two, concurrent to count one; and four to ten years on count three, consecutive to count two. Id.; Exh. 37. The judgment of conviction issued March 3, 2006. Exh. 37. Petitioner did not file a direct appeal.

On January 20, 2006, petitioner filed his first state postconviction petition. Exh. 34. On March 24, 2006, without holding an evidentiary hearing, the district court denied the petition. Ex. 42. Petitioner appealed. Ex. 39. On March 15, 2006, petitioner filed his second state postconviction petition. Exh. 94. On June 14, 2006, without holding an evidentiary hearing, the district court denied the petition. Exh. 45. Petitioner appealed. Exh. 46. On November 28, 2006, the Nevada Supreme Court affirmed the denial of petitioner's first and second postconviction petitions. Exh. 50.

On January 2, 2007, petitioner dispatched his petition for writ of habeas corpus to this court (ECF #3). In an order issued May 1, 2009, the court found part of ground two of the petition unexhausted (ECF #34). On September 22, 2009, the court stayed the case while petitioner returned to state court to exhaust the claim (ECF #38).

On July 1, 2009, petitioner filed his third state postconviction petition. Exh. 114. On October 26, 2009, without holding an evidentiary hearing, the district court denied the petition. Exh. 118. Petitioner appealed. Exh. 119. On July 15, 2010, the Nevada Supreme Court affirmed the denial of petitioner's third postconviction petition. Exh. 128.

This court reopened petitioner's federal habeas corpus action on October 19, 2010 (ECF #45). Petitioner filed an amended petition on October 28, 2010 (ECF #47). The only remaining claims are portions of ground 2 ( see ECF #61). Respondents have answered and argue that the remaining ineffective assistance of counsel claims must be denied pursuant to the Antiterrorism and Effective Death Penalty Act (ECF #62).

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. ...


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