United States District Court, D. Nevada
TACUMA J. M'WANZA, Petitioner,
RENEE BAKER, etal., Respondents.
R. HICKS UNITED STATE DISTRICT JUDGE.
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 by petitioner Tacuma M'Wanza is
before the court for adjudication of the merits.
Procedural History & Background
February 5, 2010 Las Vegas Metropolitan Police
("LVMPD") report reflects the following: police
received a report of a person with a gun near a Las Vegas
intersection. The caller reported that a man pulled a gun on
him and a friend and attempted to rob them. When two officers
arrived at the location, they saw M'Wanza, who generally
fit the description provided. When the officers identified
themselves and ordered petitioner to stop, he refused and
continued walking away from the officers. The officers tased
M'Wanza and took him into custody. They immediately
patted him down and found a .38 caliber revolver in his
waistband. Exhibit 2.
February 10, 2010, the State filed a criminal complaint
charging M'Wanza with attempted robbery with use of a
deadly weapon, carrying a concealed firearm or other deadly
weapon, and possession of a firearm by an ex-felon.
Id. At a preliminary hearing, the State moved to
dismiss the attempted robbery with use of a deadly weapon
charge. Exhs. 1, 2. On March 12, 2010, the State filed an
information charging the two remaining offenses described
above. Exh. 3. Petitioner pled not guilty. Exh. 4.
signed a guilty plea agreement on August 3, 2010. Under its
terms, he would plead guilty to possession of a firearm by an
ex-felon; the parties stipulated that he would be adjudicated
a habitual criminal, receive a sentence of 60 to 150 months,
would not receive probation, and that the remaining charge of
carrying a concealed firearm or other deadly weapon as well
as a charge in a separate case would be dismissed. Exhs.
district court held a change-of-plea hearing on August 3,
2010. During the plea canvass, M'Wanza expressed that he
felt that he had no choice but to plead guilty to ex-felon in
possession of a firearm. Exh. 16, pp. 4-7. The court
therefore did not immediately accept his plea and stood in
recess for about an hour in order for M'Wanza to discuss
the plea with counsel. Once the hearing resumed, M'Wanza
stated that he was entering the plea freely and voluntarily,
and the court accepted the plea. Id. at 7-9.
October 7, 2010 sentencing hearing, petitioner informed the
court that he had not understood what habitual criminal
treatment meant and that if he had understood what it meant
he would not have pled guilty. Exhs. 18, 18A. The court
requested a transcript of M'Wanza's plea hearing and
continued his sentencing. Mwanza's counsel thereafter
moved to withdraw and on November 9, 2010, the court granted
her motion. Exhs. 19, 20.
December 2, 2010, the court confirmed Carl Arnold as
petitioner's new counsel. Exh. 21. M'Wanza filed a
counseled motion to withdraw guilty plea on March 18, 2011.
The court denied the motion and entered its order on April
25, 2011. Exhs. 22-25. On April 26, 2011 and May 5, 2011, the
state district court sentenced petitioner in accordance with
the plea agreement to 60 to 150 months with 453 days'
credit for time served. Exhs. 26, 27. Judgment of conviction
was entered on May 11, 2011. Exh. 28.
filed a pro se motion to dismiss Arnold as his
counsel based on his alleged failure to file an adequate
motion to withdraw plea and his failure to timely file a
notice of appeal, which the court granted on August 23, 2011.
Exhs. 29, 30.
November 3, 2011, M'Wanza filed a pro se
postconviction petition for writ of habeas corpus in state
district court, the court appointed counsel, and counsel
filed a supplement to the petition and an amended supplement
to the petition. Exhs. 31, 33-38. After an evidentiary
hearing, the court found that petitioner had been denied a
direct appeal, granted a Lozada appeal, and
dismissed the ineffective assistance of counsel claims. Exh.
39. Notice of entry of order was filed on March 11, 2013.
March 11, 2013, M'Wanza filed his notice of appeal from
judgment of conviction. Exh. 41. On April 2, 2013, he filed
his notice of appeal from the dismissal of his state
postconviction petition. Exh. 42. On January 21, 2014, the
Nevada Supreme Court affirmed the judgment of conviction and
affirmed the district court's dismissal of the
postconviction petition. Exhs. 49, 50. Remittiturs issued on
February 18, 2014. Exhs. 51, 52.
dispatched his federal petition for writ of habeas corpus on
or about February 12, 2014 (ECF No. 4). This court granted
respondents' motion to dismiss in part, dismissing
grounds 1, 2, 3(B), and several subparts of ground 3(A) (ECF
No. 17).Respondents have now answered the remaining grounds
(ECF No. 27), and M'Wanza replied (ECF No. 31).
Legal Standard under the Antiterrorism and Effective Death
Penalty Act (AEDPA)
U.S.C. § 2254(d), a provision of the Antiterrorism and
Effective Death Penalty Act (AEDPA), provides the legal
standards for this ...