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Christensen v. Baca

United States District Court, D. Nevada

March 30, 2017

DEREK CHRISTENSEN, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          ROBERT C. JONS UNITED STATES DISTRICT JUDGE

         This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by petitioner Derek Christensen is before the court for final disposition on the merits.

         I. Procedural History & Background

         Christensen was charged by way of information with one count of sexual assault on a child and one count of lewdness with a child under age fourteen. Exhibit 3.[1] On June 4, 2008, Christensen pled guilty to two counts of lewdness with a child under the age of fourteen. Exh. 5. On August 20, 2008, the state district court sentenced Christensen to two consecutive terms of life with the possibility of parole after ten years, and entered the judgment of conviction. Exhs. 10, 11. On August 5, 2009, the Nevada Supreme Court affirmed the convictions, and remittitur issued on September 1, 2009. Exhs. 24, 25.

         On March 30, 2010, Christensen filed a proper person motion to withdraw guilty plea or state habeas petition in state district court; he supplemented the petition on March 17, 2010. Exhs. 26, 27, 39. The state district court granted the State's motion to dismiss the petition and supplemental petition on August 1, 2011. Exh. 49. On June 13, 2012, the Nevada Supreme Court affirmed in part and reversed in part, remanding the matter for an evidentiary hearing on Christensen's claim that his plea was not knowing, voluntary and intelligent because he was unaware that he was ineligible for probation. Exh. 66. Remittitur issued on July 10, 2012. Exh. 67.

         On October 12, 2012, petitioner dispatched his first federal habeas petition. Case No. 3:12-cv-0477-RCJ-VPC at ECF No. 5. The court dismissed the petition as wholly unexhausted. Id. at ECF No. 9.

         On December 13, 2012, the state district court conducted an evidentiary hearing on the remanded state postconviction claim. Exh. 69. On January 4, 2013, the state district court issued an order dismissing the petition and supplemental petition. Exh. 70. The Nevada Supreme Court affirmed the dismissal of the remaining ground on January 16, 2014, and remittitur issued on February 19, 2014. Exhs. 82, 83.

         Christensen dispatched this federal petition for writ of habeas corpus on or about March 21, 2014 (ECF No. 7). He filed a first-amended petition on September 8, 2014 (ECF No. 9). This court granted respondents' motion to dismiss in part and dismissed ground 3 as duplicative (ECF No. 25). Respondents have now answered the remaining grounds, and Christensen has replied (ECF Nos. 26, 27).

         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 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, 693-694 (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 (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, 131 S.Ct. 1388, 1398 (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 v. Andrade, 538 U.S. 63 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002).

         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.” Andrade, 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).

         In determining whether a state court decision is contrary to 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). Further, “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).

         III. Instant Petition

         Ground 1

         Christensen argues that the victim's statement at sentencing violated his Fifth and Fourteenth Amendment due process rights because the court failed to swear in the victim prior to her statement (ECF No. 9, p. 3).

         Respondents contend that no clearly established U.S. Supreme Court law governs the use of victim impact statements in non-capital sentencing hearings. See, e.g., Payne v. Tennessee, 501 U.S. 808 (1991). Moreover, the Ninth Circuit has explained that, with respect to the effect that victim impact statements might have on a jury, the concern is not the same when a judge does the sentencing. Rhoades v. Henry, 638 F.3d 1027, 1055 (9th Cir. 2010) (“We assume that the trial judge applied the law . . . and considered only evidence that he knew was admissible.”). See also Landrigan v. Stewart, 272 F.3d 1221, 1230 (9th Cir. 2001); Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) (rejecting a similar argument because the judge can “separate the wheat from the chaff”).

         In its order affirming Christensen's convictions, the Nevada Supreme Court concluded that the state district court erred by not swearing in the victim before she testified. Exh. 24, p. 2. However, the state supreme court determined that the error was harmless because “there is no indication that the district court based its sentencing decision on that unsworn impact statement. Id.

         The victim testified at sentencing that when Christensen touched her she felt uncomfortable and scared and did not know what to do. Exh. 10, p. 19. She stated she felt ashamed, wanted to be alone all the time, and started fighting with her mother. She ...


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