United States District Court, D. Nevada
C. JONS UNITED STATES DISTRICT JUDGE
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.
Procedural History & Background
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. 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.
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.
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.
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.
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).
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 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;
(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.
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
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).
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).
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).
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).
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”).
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.
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.