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Leslie v. Neven

United States District Court, D. Nevada

March 31, 2017

EMERSON LESLIE, Petitioner,
v.
D. W. NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON United States District Judge

         Before the court are the petition for a writ of habeas corpus (ECF No. 8), respondents' answer (ECF No. 50), and petitioner's reply (ECF No. 51). The court finds that petitioner is not entitled to relief, and the court denies the petition.

         Outside of a hotel in downtown Las Vegas, petitioner beat up a man, knocking him out and seriously injuring him. A security camera recorded the beating. The hotel manager viewed the videotape and identified petitioner as the attacker. When police arrested petitioner, he fought back. Petitioner was convicted of battery causing substantial bodily harm and assault upon an officer, respectively. Petitioner had two prior felony convictions, and the state district court sentenced him as a habitual criminal under Nev. Rev. Stat. § 207.010. Ex. 21 (ECF No. 24-24).

         Congress has limited the circumstances in which a federal court can grant relief to a petitioner who is in custody pursuant to a judgment of conviction of a state court.

         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.

28 U.S.C. § 2254(d). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562 U.S. 86, 98 (2011).

Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision “was contrary to” federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000); or that it “involved an unreasonable application of” such law, § 2254(d)(1); or that it “was based on an unreasonable determination of the facts” in light of the record before the state court, § 2254(d)(2).

Richter, 562 U.S. at 100. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citation omitted). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Id. (citation omitted).

[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

Richter, 562 U.S. at 102.

As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Id. at 103.

         Ground 1 contains multiple claims of ineffective assistance of counsel. A petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation “fell below an objective standard of reasonableness, ” Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that the attorney's deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” id. at 694. “[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.

         The Sixth Amendment does not guarantee effective counsel per se, but rather a fair proceeding with a reliable outcome. See Strickland, 466 U.S. at 691-92. See also Jennings v. Woodford, 290 F.3d 1006, 1012 (9th Cir. 2002). Consequently, a demonstration that counsel fell below an objective standard of reasonableness alone is insufficient to warrant a finding of ineffective assistance. The petitioner must also show that the attorney's sub-par performance prejudiced the defense. Strickland, 466 U.S. at 691-92. There must be a reasonable probability that, but for the attorney's challenged conduct, the result of the proceeding in question would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” . . . and when the two apply in tandem, review is “doubly” so . . . . The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted).

         Ground 1(A) itself contains multiple claims of ineffective assistance of counsel. First, petitioner claims that counsel failed to investigate three people. On this issue, the Nevada Supreme Court held:

Fourth, appellant claimed that trial counsel was ineffective for failing to interview (1) T. Purifoy to determine if she actually consented to a search of her motel room where appellant's identification was obtained; (2) appellant's girlfriend, who would have impeached the victim and testified that appellant acted in self-defense to the assault charge; and (3) the victim, which would have helped counsel determine how to question him at trial. Appellant failed to demonstrate that counsel's performance was deficient or that he was prejudiced. Trial counsel testified during the evidentiary hearing that he attempted, but was unable, to contact T. Purifoy before trial. Thus, appellant failed to demonstrate that counsel's performance was deficient. Furthermore, appellant failed to demonstrate prejudice, as there is no support in the record for his speculative assertion that T. Purifoy might not have consented to the search of her motel room. Counsel also testified that he did not learn that appellant's girlfriend was a percipient witness until trial, at which point he unsuccessfully attempted to endorse her as a witness. Because appellant did not inform counsel before trial that his girlfriend was a witness and wished to testify, counsel was not deficient for failing to interview her. As to his claim regarding the victim, appellant failed to explain how a pretrial interview of the victim would have had a reasonable probability of changing the outcome of the trial. Thus, the district court did not err in denying this claim.

Ex. 74, at 4-5 (ECF No. 28-1, at 5-6). Counsel did testify that he was unable to locate Purifoy. Ex. 57, at 30 (ECF No. 25-33, at 31). The court will discuss in greater detail below, regarding ground 8, the trial court's decision not to allow petitioner's girlfriend to testify. It is sufficient to note now that petitioner did not inform counsel that his girlfriend would be a useful witness until the end of the first day of trial. Finally, even now petitioner has not alleged any facts ...


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