United States District Court, D. Nevada
P. GORDON United States District Judge
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
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).
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.
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.
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,
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.
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.
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
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)
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
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 ...