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Somee v. Hobbs

United States District Court, D. Nevada

March 14, 2017

AKAPHONG SOMEE, Petitioner,
v.
RAY HOBBS, et al., Respondents.

          ORDER

          JAMES C. MAHAN, UNIT ED STATES DISTRICT JUDGE

         This 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).

         I. Background & Procedural History

          Somee 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 14).[1] 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.

         Somee 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.

         Somee 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. 44, 45.

         Somee 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).

         II. Legal Standards

          a. Antiterrorism and Effective Death Penalty Act (AEDPA)

         Title 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.

         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, 693-94 (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).

         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, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and 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.” 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).

         To the 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 deference:

.... [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.

         Under 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.

         b. Ineffective ...


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