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M'Wanza v. Baker

United States District Court, D. Nevada

March 24, 2017

TACUMA J. M'WANZA, Petitioner,
v.
RENEE BAKER, etal., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATE DISTRICT JUDGE.

         This is 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.

         I. Procedural History & Background

          A 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.[1]

         On 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.

         M'Wanza 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. 15-17.

         The 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.

         At the 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.

         On 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.

         M'Wanza 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.

         On 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. Exh. 40.

         On 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.

         M'Wanza 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).

         II. Legal Standard under the Antiterrorism and Effective Death Penalty Act (AEDPA)

         28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this ...


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