United States District Court, D. Nevada
D. MCKIBBEN, United States District Judge
the court are the first amended petition for writ of habeas
corpus (ECF No. 14), respondents' answer (ECF No. 23),
and petitioner's reply (ECF No. 28). The court finds that
petitioner is not entitled to relief, and the court denies
jury trial, petitioner was convicted of one count of sexual
assault with a minor under sixteen years of age. Ex. 29 (ECF
No. 19-6). Petitioner appealed, and the Nevada
Supreme Court affirmed. Ex. 48 (ECF No. 20-3).
then filed a post-conviction habeas corpus petition in the
state district court. Ex. 54 (ECF No. 20-9). The state
district court denied the petition. Ex. 61 (ECF No. 20-16).
Petitioner appealed, and the Nevada Supreme Court reversed
and remanded for appointment of counsel to develop
petitioner's claims. Ex. 69 (ECF No. 20-24). Counsel
filed a supplemental petition. Ex. 73 (ECF No. 21). The state
district court held an evidentiary hearing. Ex. 75 (ECF No.
21-2). The state district court then denied the petition. Ex.
76 (ECF No. 21-3). Petitioner appealed, and the Nevada
Supreme Court affirmed. Ex. 85 (ECF No. 21-12).
then commenced this action. The court appointed counsel, who
filed the first amended petition (ECF No. 14).
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;
(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, 562 U.S. 86, 98 (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,
Richter, 562 U.S. at 100. “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