United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
Before the court are the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (#4), respondents' answer (#22), and petitioner's traverse (#44). The court finds that relief is not warranted, and the court denies the petition.
After a jury trial, petitioner was convicted in state district court of one count of open or gross lewdness, one count of indecent exposure, and four counts of lewdness with a child under the age of 14, known as C.M. Ex. 28 (#13). Petitioner appealed. The Nevada Supreme Court found that the convictions for open and gross lewdness and for indecent exposure were redundant, and it reversed the conviction for indecent exposure. Ex. 48 (#13).
Petitioner then filed in state district court a post-conviction habeas corpus petition. Ex. 60 (#14). The state district court denied the petition. Ex. 70 (#14). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 71 (#14).
Petitioner then commenced this action. The court served the petition upon respondents, who moved to dismiss some grounds (#11). The court dismissed grounds 2, 4, 6, 10, and part of ground 7 because they were procedurally defaulted. The court dismissed grounds 1 and 5 because they were conclusory. Order (#18). Reasonable jurists would not find these determinations to be debatable or wrong, and the court will not issue a certificate of appealability for the dismissal of these grounds.
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 reaching outcomes in case-by-case determinations.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.
Richter, 131 S.Ct. at 786.
As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Id., at 786-87.
In ground 3, petitioner claims that the prosecution withheld potential exculpatory or impeachment evidence from the defense. Petitioner raised this claim on direct appeal. The Nevada Supreme Court held:
Cacho next argues that the State knowingly withheld exculpatory evidence until just days before the trial began. His argument focuses on Child Protective Service (CPS records. This argument is meritless.
Brady v. Maryland, 373 U.S. 83 (1963) requires the state to disclose material evidence to the defense. Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000). "[E]vidence is material if there is a reasonable probability that the result would have been different if the evidence had been disclosed." Id . There are three factors to consider when examining a potential Brady violation: whether the evidence at issue (1) was favorable to the defendant; (2) was withheld, either inadvertently or intentionally; and (3) was material and, therefore, prejudice occurred. Id. at 67, 993 P.2d at 37. This court uses de novo review in determining whether the state has committed a Brady violation. Id. at 66, 993 P.2d at 36.
The district court held a calendar call on February 6, 2008. During the proceeding, the following exchange took place between the court, the State, and the defense:
[DEFENSE COUNSEL]:... I had put in an order on this case with the Court. I'm assuming it's in your file. It's for the relief of ...