United States District Court, D. Nevada
C. MAHAN, UNIT ED STATES DISTRICT JUDGE
counseled first-amended 28 U.S.C. § 2254 habeas petition
by petitioner Akaphong Somee is before the court for
adjudication on the merits (ECF No. 17).
Background & Procedural History
was initially charged by way of a criminal complaint with
first-degree kidnapping with use of a deadly weapon,
conspiracy to commit robbery, robbery with use of a deadly
weapon, and burglary while in possession of a firearm, in
connection with an incident in which he and his co-defendant
handcuffed and duct taped a woman at gunpoint and then robbed
her small store (exhibit 2; see also exhibit
On April 7, 2008, Somee pleaded guilty to count 1 -
conspiracy to commit robbery and count 2 - robbery with use
of a deadly weapon. Exh. 12. The state district court
sentenced him to 24 to 60 months on count 1, and 72 to 180
months on count 2, with a consecutive 72 to 180 months for
the deadly weapon enhancement, count 1 and 2 to run
concurrently with each other and with a sentence Somee was
already serving in Arkansas. Exh. 14. Judgment of conviction
was filed on May 28, 2008. Exh. 15.
filed a counseled motion to reconsider the sentence on June
3, 2008, which the state district court denied. Exh. 16; exh.
1, p. 5. The Nevada Supreme Court affirmed the convictions on
January 22, 2009, and remittitur issued on February 17, 2009.
Exhs. 24, 25.
filed a state postconviction petition, and counsel filed a
supplemental brief. Exhs. 27, 33. The state district court
conducted an evidentiary hearing on May 18, 2012, and the
court denied the petition on September 11, 2012. Exh. 37. The
Nevada Supreme Court affirmed the denial of the petition on
May 14, 2013, and remittitur issued on June 11, 2013. Exhs.
dispatched his federal habeas petition for mailing on June
30, 2013 (ECF No. 7). Because Somee is incarcerated in
Arkansas, this court granted his motion for appointment of
counsel (ECF No. 6). Somee filed a counseled, first-amended
petition, respondents filed an answer, and Somee replied (ECF
Nos. 17, 35, 37).
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;
(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.
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, 693-94 (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, 102 (2011). The
Supreme Court has emphasized “that even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see
also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(describing the AEDPA standard as “a difficult to meet
and highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given
the benefit of the doubt”) (internal quotation marks
and citations omitted).
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, 538 U.S. at 73 (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000), and citing
Bell, 535 U.S. at 694).
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.”
Lockyer, 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).
extent that the state court's factual findings are
challenged, the “unreasonable determination of
fact” clause of § 2254(d)(2) controls on federal
habeas review. E.g., Lambert v. Blodgett, 393 F.3d
943, 972 (9th Cir. 2004). This clause requires that the
federal courts “must be particularly deferential”
to state court factual determinations. Id. The
governing standard is not satisfied by a showing merely that
the state court finding was “clearly erroneous.”
393 F.3d at 973. Rather, AEDPA requires substantially more
.... [I]n concluding that a state-court finding is
unsupported by substantial evidence in the state-court
record, it is not enough that we would reverse in similar
circumstances if this were an appeal from a district court
decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review,
could not reasonably conclude that the finding is supported
by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004); see also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
convincing evidence. The petitioner bears the burden of
proving by a preponderance of the evidence that he is
entitled to habeas relief. Cullen, 563 U.S. at 181.