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Devine v. Baca

United States District Court, D. Nevada

March 31, 2017

JAMIERL DEVINE, Petitioner,
v.
WARDEN BACA, et al., Respondents.

          ORDER

          ROBERT C. JONES UNITED STATES? DISTRICT JUDGE

         This pro se 28 U.S.C. § 2254 habeas petition by petitioner Jamierl Devine is before the court for adjudication on the merits (ECF No. 7).

         I. Background & Procedural History

         On February 1, 2010, the State charged Devine in the Eighth Judicial District Court, Clark County, Nevada, by information with count 1: conspiracy to commit robbery; count 2: burglary; and count 3: robbery (exhibit 7).[1] Devine pled not guilty. See exh. 6 (2/11/10). He was represented by Michael Sanft unless otherwise noted.

         On October 12, 2010, the date set for trial, the parties informed the court that they had reached an agreement. Exh. 15. Devine pled guilty to the three counts contained in the information, and the State agreed not to pursue habitual criminal enhancement. Id.; see exh. 16.

         At the time scheduled for sentencing, Devine informed the court that he did not want to go forward and stated that Mr. Sanft was ineffective. Exh. 18. The court appointed Cynthia Dustin to represent petitioner. Id. On February 8, 2011, Ms. Dustin informed the court that after reviewing the file and speaking with Devine, she concluded that he did not meet the threshold to withdraw his plea. Exh. 22. Ms. Dustin requested to withdraw from the matter and requested the re-appointment of Mr. Sanft for sentencing, which the court granted. Id.

         On February 17, 2011, the court sentenced Devine as follows: count 1 - 28 to 72 months; count 2 - 48 to 120 months, concurrent to count 1; and count 3 - 72 to 180 months, concurrent to count 2 and concurrent to the possession of a stolen vehicle case. Exh. 24. The court filed the judgment of conviction on March 9, 2011. Exh. 25. Devine did not file a direct appeal. See Exh. 40, p. 2.

         On September 23, 2011, Devine filed a proper person postconviction petition for writ of habeas corpus in state district court. Exh. 35. On July 25, 2012, the Nevada Supreme Court affirmed the district court's denial of the petition in part, reversed in part and remanded the matter to the district court. Exh. 48. The court held that the district court did not err in denying petitioner's allegations that trial counsel failed to address a violation of his Miranda rights, failed to prepare a defense for trial or failed to maintain contact with petitioner. The state supreme court reversed and remanded for an evidentiary hearing on petitioner's claim that trial counsel failed to inform him of a plea offer prior to the preliminary hearing. Id. Remittitur issued on August 20, 2012. Exh. 49.

         On February 14, 2013, the state district court held the evidentiary hearing; at the conclusion of the hearing, the court denied the petition. Exh. 55. The court filed written findings of fact, conclusions of law and order denying the petition on March 12, 2013. Exh. 57. The Nevada Supreme Court affirmed the state district court's denial of the petition on September 18, 2013, and remittitur issued on October 14, 2013. Exhs. 66, 67.

         Petitioner dispatched his federal petition for writ of habeas corpus on or about March 5, 2014 (ECF No. 7). This court granted respondents' motion to dismiss in part and dismissed grounds 1 and 2 (ECF No. 18). Respondents have now answered the remaining ground, ground 3 (ECF No. 20).

         II. Legal Standards

         a. 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 ...

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