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Mead v. LeGrand

United States District Court, D. Nevada

March 23, 2017

GEORGE MEAD, Petitioner,
ROBERT LeGRAND, et al., Respondents.



         This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner. This matter comes before the Court on the merits of the petition.


         On January 18, 2006, in the Eighth Judicial District for the State of Nevada, the State filed an information charging petitioner with five counts of lewdness with a child under the age of 14. (Exh. 24.)[1] Petitioner underwent a competency examination and was found to be competent. (Exh. 40 at 13, 15, 16; Exh. 41 at 4, 8.) On March 25, 2009, the State filed an amended information, pursuant to negotiations, charging petitioner with one count of coercion. (Exh. 43.) Petitioner entered into a guilty plea agreement in which he pled guilty to the count in the amended information. (Exh. 42.) Pursuant to the guilty plea agreement, the State agreed not to oppose probation if petitioner's psychosexual evaluation determined that he was not a high risk to re-offend. (Id.) If petitioner was found to be a high risk to re-offend pursuant to the psychosexual evaluation, the State retained full right to argue. (Id.) The guilty plea agreement was signed and filed on March 25, 2009. (Id.) That same day, petitioner entered his guilty plea before the state district court. (Exh. 41.)

         On May 12, 2009, petitioner filed a motion to withdraw his guilty plea and motion for appointment of new counsel. (Exh. 44.) Petitioner presented no factual allegations or legal authority to support his motion. (Id.) The State opposed petitioner's motion. (Exh. 46.) In his reply to the State's opposition to the motion to withdraw his guilty plea, petitioner asserted that he was depressed at the time he entered his guilty plea. (Exh. 47 at 2.)

         At the hearing on petitioner's motion to withdraw his guilty plea, on May 27, 2009, petitioner told the court that he was depressed on the day he entered his guilty plea. (Exh. 48 at 3.) Petitioner stated that he felt coerced because he had been free on bond prior to being sent for a mental evaluation and that he would not be released unless he accepted the plea at that time. (Id. at 3.) The state district court denied petitioner's motion to withdraw his guilty plea, finding that the claim that he was depressed and therefore did not knowingly, voluntarily, and intelligently enter his plea was belied by the record. (Id. at 5.) The court noted that its canvass of petitioner at the time he entered his guilty plea was extremely thorough. (Id.) The court also noted that petitioner's psychosexual evaluation found that he was at high risk to re-offend based on a conviction for gross misdemeanor lewdness in 1993 and other prior convictions. (Id. at 6-7.)

         At the sentencing hearing on June 10, 2009, petitioner made an oral motion to strike the psychosexual evaluation, which the court denied. (Exh. 49 at 2-5.) The court sentenced petitioner to 28 to 72 months in the Nevada Department of Corrections, with 45 days credit for time served. (Id. at 7.) Petitioner was ordered to register as a sex offender upon release from prison. (Id.) The judgment of conviction was filed on June 12, 2009. (Exh. 50.)

         Petitioner appealed his judgment of conviction. (Exh. 51.) On February 3, 2010, the Nevada Supreme Court filed an order affirming petitioner's conviction. (Exh. 62.) Remittitur issued on May 13, 2010. (Exh. 75.)

         On June 9, 2010, the Nevada Supreme Court dismissed petitioner's appeal from a district court order denying his motion for withdrawal of attorney and delivery of records. (Exh. 77.) Remittitur issued on July 7, 2010. (Exh. 89.)

         On August 20, 2010, petitioner filed a motion for modification of his sentence in which he alleged that when sentencing him, the state district court relied on errors in his presentence investigation report and psychosexual evaluation. (Exh. 96.) On September 7, 2010, the state district court denied the motion for modification of sentence. (Exh. 100.) Petitioner appealed. (Exh. 102.) On June 8, 2011, the Nevada Supreme Court affirmed the denial of petitioner's motion for modification of his sentence. (Exh. 130.) The Nevada Supreme Court denied petitioner's request for en banc reconsideration. (Exh. 135.) Remittitur issued on November 14, 2011. (Exh. 137.)

         On November 30, 2010, petitioner filed a post-conviction habeas petition in state district court. (Exh. 114.) An evidentiary hearing was held in the state district court on April 13, 2011. (Exh. 120.) By written order filed June 9, 2011, the state district court denied the petition. (Exh. 131.) Petitioner appealed the denial of his post-conviction habeas petition. (Exh. 127.) On April 11, 2012, the Nevada Supreme Court affirmed the denial of the post-conviction habeas petition. (Exh. 152.) The Nevada Supreme Court denied petitioner's petition for rehearing on June 13, 2012. (Exh. 158.) Remittitur issued on August 27, 2012. (Exh. 162.)

         Petitioner dispatched his federal habeas petition to this Court on October 1, 2012. (ECF No. 5 at 1.) Respondents have filed an answer and exhibits. (ECF Nos. 22, 23, 24, 25, 26, 28.) On October 1, 2013, the Court ordered respondents to serve the exhibits on petitioner and directed that a reply brief was due within 45 days. (ECF No. 37.) On October 3, 2013, respondents filed a notice of compliance and proof that the exhibits were served on petitioner. (ECF No. 38.) On October 10, 2013, respondents filed a second response to the Court's order, with an attached email from petitioner acknowledging receipt of the exhibits. (ECF No. 39.) The time for petitioner to file a reply has long since expired. The Court now considers the merits of the petition.


         The Antiterrorism and Effective Death Penalty Act (“AEDPA”), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition:

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, 693-694 (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 v. Taylor, 529 U.S. 362, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). The formidable standard set forth in section 2254(d) reflects the view that habeas corpus is “‘a guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).

         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 75 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires the state court decision to be more than merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). In determining whether a state court decision is contrary to, or an unreasonable application of, 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), cert. denied, 534 U.S. 944 (2001).

         In a federal habeas proceeding, “a determination of a factual issue made by a State court shall be presumed to be correct, ” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the burden set in § 2254(d) and (e) on the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170, 185 (2011).


         A. Ineffective Assistance of Counsel Standard

         Under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must show, first, that counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms. Id. at 688-90. Second, the petitioner must demonstrate that the identified acts or omissions of counsel prejudiced his defense. He must establish “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Application of the Strickland test where ineffectiveness of counsel is alleged to have invalidated a plea has been defined as follows:

[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, supra, and McMann v. Richardson, supra. The second, or “prejudice, ” requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 58 (1985). The modified Strickland prejudice standard in guilty plea cases asks whether there is a probability that, but for counsel's alleged errors, defendant would not have pleaded guilty, but would have insisted on going to trial. Langford v. Day, 110 F.3d 1380, 1387 (9th Cir. 1997).

         The Strickland standard also applies to claims of ineffective appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). Appellate counsel has no constitutional duty to raise every non-frivolous issue requested by the client. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). To state a claim of ineffective assistance of appellate counsel, a petitioner must demonstrate: (1) that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) that the resulting prejudice was such that the omitted issue would have a reasonable probability of success on appeal. Id. “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Id. at 751-52. Petitioner must show that his counsel unreasonably failed to discover and file nonfrivolous issues. Delgado v. Lewis, 223 F.3d 976, 980 (9th Cir. 2000). It is inappropriate to focus on what could have been done rather than focusing on the reasonableness of what counsel did. Williams v. Woodford, 384 F.3d 567. 616 (9th Cir. 2004) (citation omitted).

         B. Ground 1

         Petitioner claims that he was denied his state-created right to reasonable bail when the state district court remanded him to custody without bail on February 25, 2009, without a hearing, in violation of Nevada Constitution Art. 1 § 7, NRS 178.499, NRS 178.532, NRS 178.534, and NRS 178.538. Petitioner claims that the state district court had allowed him out on bail once he posted $60, 000.00, but remanded him into custody for a competency hearing because his counsel checked a box on a form indicating that petitioner did not understand the adversarial nature of the legal process. Petitioner claims there was a communication difficulty between himself and his counsel regarding the fact that he refused to accept a plea bargain. Petitioner alleges that his trial counsel was ineffective for failing to properly object to him being remanded to custody for the purpose of determining his competency. Petitioner further claims that appellate counsel was ineffective for failing to raise this issue on direct appeal. (ECF No. 5 at 3; ECF No. 5-1, Attachment to Petition, Part (a), at 1-4.)

         Petitioner's claim that the trial court denied his state-created right to bail is an issue of state law which is not cognizable as a federal habeas claim. A state prisoner is entitled to habeas relief only if he is being held in custody in violation of the constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Engle v. Isaac, 456 U.S. 107, 119 (1982). A federal writ may not issue on the basis of a perceived error of state law. Pulley v. Harris, 456 U.S. 37 (1984). Federal habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371 (1972). The federal courts are not a state supreme court of errors. Jammal v. Van de Kamp, 926 F.2d 745 (9th Cir. 1991).

         Moreover, a state court's interpretation of state law is binding upon a federal court in the context of a federal habeas corpus action. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). “A state's interpretation of its own laws or rules affords no basis for federal habeas corpus relief because no federal constitutional question arises.” Burkey v. Deeds, 824 F.Supp. 190, 191 (D. Nev. 1993). It is settled law that habeas corpus relief is available only to correct errors of constitutional dimension. Alleged errors in the interpretation or application of state law do not warrant habeas relief. Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994).

Regarding the alleged denial of bail, the Nevada Supreme Court found as follows:
[A]ppellant failed to demonstrate that he was wrongfully denied bail. Appellant was remanded for a competency hearing and was released on his own recognizance after being ...

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