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Selbach v. Palmer

United States District Court, D. Nevada

March 27, 2015

JERRY SELBACH, Petitioner,
v.
J. PALMER, et al., Respondents.

ORDER

MIRANDA M. DU, District Judge.

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a Nevada state prisoner, is proceeding pro se (dkt. no. 5). Now before the Court is respondents' answer to the petition (dkt. no. 9) and a decision on the merits.

I. PROCEDURAL HISTORY AND BACKGROUND

On December 7, 2006, the State charged petitioner with sexual assault. (Exh. 4.)[1] Petitioner pled guilty in exchange for the State's promise not to file additional charges resulting from the arrest for sexual assault. (Exh. 6 at 3.) He was released on bail, then charged with aggravated stalking in relation to a December 21, 2006, incident. (Exh. 11.) Petitioner pled guilty to the second charge, again in exchange for the State's promise not to file any other related charges. (Exh. 13 at 3.) The state district court sentenced petitioner to life imprisonment with the possibility of parole after ten years on the sexual assault charge and a consecutive term of six to fifteen years on the aggravated stalking charge. (Exhs. 15, 16.)

Petitioner appealed his convictions, which the Nevada Supreme Court affirmed on May 7, 2007. (Exhs. 17, 19, 32, 34.)

Petitioner filed state postconviction petitions for a writ of habeas corpus for each of the two criminal cases. (Exhs. 40, 41.) The state district court denied both petitions on December 2, 2009. (Exhs. 75, 76.) The Nevada Supreme Court consolidated the appeals and affirmed the denial of the state postconviction petitions on June 9, 2010. (Exhs. 91, 109.)

Petitioner dispatched this federal petition for writ of habeas corpus on August 30, 2010, raising three grounds for relief (dkt. no. 5). Respondents have answered the petition and argue that it should be denied on the merits (dkt. no. 9).

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, 529 U.S. 362, 405-406 (2000) and citing Bell, 535 U.S. at 694). 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." Andrade, 538 U.S. 63 (quoting Williams, 529 U.S. at 405-06; citing Bell, 535 U.S. at 694.

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 ...


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