United States District Court, D. Nevada
C. JONES UNITED STATES? DISTRICT JUDGE
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).
Background & Procedural History
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). Devine pled not
guilty. See exh. 6 (2/11/10). He was represented by
Michael Sanft unless otherwise noted.
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.
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.
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.
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.
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.
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).
Antiterrorism and Effective Death Penalty Act
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 ...