United States District Court, D. Nevada
MARCUS D. YOUNG, Petitioner,
RENEE BAKER, et al., Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
action is a petition for writ of habeas corpus by Marcus D.
Young, a Nevada prisoner. The action is before the Court with
respect to the merits of the claims in Young's habeas
petition. The Court will deny Young's petition.
January 21, 2009, Young was convicted in Nevada's Second
Judicial District Court, upon guilty pleas, of one count of
sexual assault on a child and one count of lewdness with a
child under the age of fourteen years, and he was sentenced
to a term of life in prison with the possibility of parole
after twenty years on the sexual assault conviction, and a
consecutive term of life in prison with the possibility of
parole after ten years on the lewdness conviction.
*See Judgment, Exh. 13 (ECF No. 25-13) (The exhibits
referred to in this order were filed by Young and are found
in the record at ECF Nos. 25, 26 and 27.).
conviction resulted from his sexual assault upon, and
lewdness with, his eleven-year old step-daughter.
(See Incident Report, Exh. 1 (ECF No. 25-1); Arrest
Report and Declaration of Probable Cause, Exh. 2 (ECF No.
25-2); Transcript of Interview, Exh. 3 (ECF No. 25-3);
Transcript of Arraignment (Guilty Plea), Exh. 10 at 6-10 (ECF
No. 25-10 at 7-11).) Police reports filed in this case by
Young, along with the transcript of his statements to the
police, reflect that there was substantial evidence of
multiple sexual assaults and incidents of lewd behavior over
several months. (See Incident Report, Exh. 1 (ECF
No. 25-1); Arrest Report and Declaration of Probable Cause,
Exh. 2 (ECF No. 25-2); Transcript of Interview, Exh. 3 (ECF
did not pursue a direct appeal of the judgment of conviction.
However, on October 14, 2009, Young filed a petition for writ
of habeas corpus in the state district court. (See
Petition for Writ of Habeas Corpus, Exh. 23 (ECF No. 26-6).)
Counsel was appointed for Young, and, with counsel, Young
filed a supplemental habeas petition on August 31, 2010.
(See Supplemental Petition for a Writ of Habeas
Corpus, Exh. 32 (ECF No. 26-15).) The state district court
held an evidentiary hearing on January 7, 2011. (See
Transcript of Evidentiary Hearing, Exh. 37 (ECF No. 26-20).)
On January 24, 2011, the state district court denied
Young's petition. (See Order, Exh. 39 (ECF No.
26-22).) Young appealed, and the Nevada Supreme Court
affirmed on June 14, 2012. (See Order of Affirmance,
Exh. 54 (ECF No. 27-13).)
initiated this federal habeas corpus action on September 5,
2012, by filing a pro se habeas corpus petition (ECF
No. 4). Counsel was appointed to represent Young.
(See Order entered January 28, 2013 (ECF No. 14);
Notice of Appearance of Counsel (ECF No. 15).) With counsel,
Young filed an amended petition for writ of habeas corpus -
the operative petition in the case - on September 19, 2013
(ECF No. 24). Respondents filed an answer (ECF No. 33), and
Young filed a reply (ECF No. 38).
SUBSTITUTION OF RESPONDENT WARDEN
Court observes that, Robert LeGrand, the named respondent
warden of the prison where Young is incarcerated, the
Lovelock Correctional Center, is no longer the warden of that
prison. Renee Baker is now the warden. Therefore, pursuant to
Federal Rule of Civil Procedure 25(d), the Court will direct
the Clerk of the Court to substitute Renee Baker for Robert
LeGrand as the respondent warden on the docket for this case.
Standard of Review
U.S.C. § 2254(d) sets forth the standard of review
applicable in this case under the Antiterrorism and Effective
Death Penalty Act (AEDPA):
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.
28 U.S.C. § 2254(d).
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, 73 (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.”
Lockyer, 538 U.S. at 75 (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).
Supreme Court has instructed that “[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.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
has stated “that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. at 102 (citing
Lockyer, 538 U.S. at 75); see also Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (describing
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
Ground 1 of his amended habeas petition, Young claims that
his federal constitutional rights were violated because of
ineffective assistance of his trial counsel. (See
Amended Petition (ECF No. 24) at 6-7.) Ground 1 is subdivided
into five separate claims of ineffective assistance of trial
counsel; the five separate claims are designated Grounds 1A,
1B, 1C, 1D and 1E. (See id. at 7-9.) In Ground 1A,
Young claims that his trial counsel was ineffective for not
moving to suppress statements that Young made to the police.
(See id. at 7-8; see also Reply (ECF No.
38) at 4-10.)
asserted this claim in his state habeas action. (See
Supplemental Petition for a Writ of Habeas Corpus, Exh. 32 at
5-9 (ECF No. 26-15 at 6-10). After holding an evidentiary
hearing (see Transcript of Evidentiary Hearing, Exh.
37 (ECF No. 26-20)), the state district court denied the
claim. (See Order, Exh. 39 at 1-2 (ECF No. 26-22 at
4-5).) On the appeal in Young's state habeas action, the
Nevada Supreme Court ruled as follows on this claim:
[A]ppellant claims that counsel was ineffective for failing
to file a motion to suppress his confession. Appellant claims
that he was not given his Miranda v. Arizona, 384
U.S. 436 (1966), warnings until partway through his interview
with police. Appellant claims that this violated Missouri
v. Seibert, 542 U.S. 600 (2004), because the police
officers employed an improper two-step interrogation scheme
to get him to confess. Appellant fails to demonstrate that
counsel was deficient. First, appellant failed to demonstrate
that he was in custody for his pre-warned statement such that
Miranda would apply because he drove himself to the
police station, he was told he was not under arrest at the
beginning of the interview, his movement was not restricted,
he voluntarily answered questions, and only one police
officer at a time was present during questioning. State
v. Taylor, 114 Nev. 1071, 1082, 968 P.2d 315, 323
(1998). Because appellant was not in custody, the police
officer was not required to give the Miranda
warnings at this point of the interview.
Second, unlike in Seibert, appellant did not confess
prior to being given his Miranda warnings. In fact,
appellant was adamant that he had done nothing wrong.
Therefore, the concerns that existed in Seibert did
not exist in this case. Accordingly, counsel was not
deficient for failing to file a motion to suppress as that
motion would have been futile, Donovan v. State, 94
Nev. 671, 675, 584 P.2d 708, 711 (1978), and the district
court did not err in denying this claim.
(Order of Affirmance, Exh. 54 at 2-3 (ECF No. 17-13 at 3-4).)
Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court propounded a two prong test for claims of
ineffective assistance of counsel: the petitioner must
demonstrate (1) that the defense attorney's
representation “fell below an objective standard of
reasonableness, ” 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.”
Strickland, 466 U.S. at 688, 694. A court
considering a claim of ineffective assistance of counsel must
apply a “strong presumption” that counsel's
representation was within the “wide range” of
reasonable professional assistance. Id. at 689. The
petitioner's burden is to show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Id. at 687. And, to establish
prejudice under Strickland, it is not enough for the
habeas petitioner “to show that the errors had some
conceivable effect on the outcome of the proceeding.”
Id. at 693. In the context of a guilty plea, to
satisfy the prejudice prong of the Strickland test,
the petitioner must show that there is “a reasonable
probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to
trial.” Hill v. Lockhart, 474 U.S. 52, 56-60
state court has adjudicated a claim of ineffective assistance
of counsel under Strickland, establishing that the
decision was unreasonable under the AEDPA is especially
difficult. See Harrington, 562 U.S. at 104-05. In
Harrington, the Supreme Court instructed:
The standards created by Strickland and §
2254(d) are both highly deferential, [Strickland,
466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320,
333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when
the two apply in tandem, review is “doubly” so,
[Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)].
The Strickland standard is a general one, so the
range of reasonable applications is substantial. 556 U.S., at
123, 129 S.Ct. at 1420. 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, 562 U.S. at 105; see also Cheney v.
Washington, 614 F.3d 987, 994-95 (9th Cir. 2010)
(acknowledging double deference required for state court
adjudications of Strickland claims).
Nevada Supreme Court's denial of this claim was
reasonable. The well-established rule of Miranda v.
Arizona, 384 U.S. 436 (1966), generally bars the use of
statements elicited in a custodial interrogation unless the
person in custody was first informed of his or her
constitutional rights. Miranda, 384 U.S. at 444.
Here, it was reasonable for the Nevada Supreme Court to
conclude that during the first part of Young's statement
to the police, before he was formally placed under arrest and
read the Miranda warnings, he was not in custody.
(See, e.g., Transcript of Evidentiary
Hearing, Exh. 37 at 27, 34-35 (ECF No. 26-20 at 28, 35-36)
(Young's testimony regarding the circumstances during the
first part of his statement).) In fact, at the end of the
first part of Young's statement, just before he was
arrested, he asked: “Look are you gonna arrest me? If
not, I'd like to go.” (Transcript of Interview,
Exh. 3 at 37, lines 24-25 (ECF No. 25-3 at 38, lines 24-25).
Taking into consideration all the circumstances, including
Young's own view that he had not been arrested, this
Court finds that the Nevada Supreme Court reasonably
determined that Young was not in custody before he was given
the Miranda warnings.
respect to Young's contention that he was subjected to an
improper two-part interrogation in violation of the rule of
Missouri v. Seibert, 542 U.S. 600 (2004), this case
is unlike Seibert because Young did not confess
before he was read the Miranda warnings. A
defendant's post-warning statements may be inadmissible
if law enforcement officers used an improper two-step
interrogation process. See Seibert, 542 U.S. at 617.
“A two-step interrogation involves eliciting an
unwarned confession, administering the Miranda
warnings and obtaining a waiver of Miranda rights,
and then eliciting a repeated confession.” United
States v. Narvaez-Gomez, 489 F.3d 970, 973-74 (9th Cir.
2007) (citing Seibert, 542 U.S. at 609-10).
“If the interrogators deliberately employ the two-step
strategy, the [court] must suppress post-warning statements
unless the interrogators take curative measures to apprise
the defendant of his rights; if the two-step method is not
deliberate, the post-warning statements are admissible if
voluntarily made.” Id. at 974 (citing
Seibert, 542 U.S. at 622 (Kennedy, J., concurring)).
In this case, Young did not confess during the unwarned
portion of the interview, before he was arrested and given
Miranda warnings. When Young was placed under
arrest, he stated: “Can we talk some more?
Please?” (Transcript of Interview, Exh. 3 at 38, line 7
(ECF No. 25-3 at 39, line 7).) He was then given
Miranda warnings, and he went on to confess.
(See id. at 38-64.) There is no showing that the
police officers deliberately employed a two-step
interrogation strategy, or that any of Young's statements
to the police were involuntary.
trial counsel testified, at some length, at the evidentiary
hearing in the state district court, regarding her decision
not to move for suppression of Young's confession. She
testified that she read the transcript of the statement or
watched a video of it. (See Transcript of
Evidentiary Hearing, Exh. 37 at 57, 65 (ECF No. 26-20 at 58,
66).) She testified further:
Q. You'd indicated you did not make a motion to suppress.
Can you explain why?
A. Yes, sir.
Q. Okay. Go ahead.
A. In my review of the interview/interrogation, to begin
with, Mr. Young was invited down to visit with the police
officers. He drove down by himself. He was not in custody.
And preliminarily, he was not interrogated. In my
professional opinion, he was interviewed. He was asked some
biographical information. He was free to leave. He was - as I
recall - again, it's been two years - he was advised that
he wasn't originally under arrest and he was free to
leave. However - and during that time, nothing was gleaned
from that interview that would have been subject to
Now, when they - the police officers decided to place him
under arrest, they fully Mirandized him. He was put into
handcuffs, and he was given the Miranda
admonishment. So, anything after that might have been
suppressible, but he was given his Miranda warnings.
Anything before that, he was not in custody, and frankly,
there is nothing in his statement that is incriminating so I
would have had nothing to suppress.
Q. To put a fine point on it, up to the point that he's
actually put in formal arrest, you had determined, based on
the totality of the circumstances leading up to that, that he
had not been subject to a quote-unquote “custodial
interrogation?” A. That is correct.
Q. And then after that, he's formally under arrest, so we
don't have a custody issue?
Q. And he's given a Miranda warning, and then
Q. And then he makes all the various and sundry admissions
and confessions, right?
Q. And your conclusion was based on the facts as you
understood them and the applicant principles of law, this
motion was not going to be meritorious?
A. That's absolutely correct.
(Id. at 71-73 (ECF No. 26-20 at 72-74).)
Court is mindful of the double deference necessary in
resolving this claim. The Court grants deference to
counsel's determination that a motion to suppress would
not have been meritorious; in addition, the Court grants
deference to the state supreme court's conclusion that
counsel acted reasonably in making that determination.
See Harrington, 562 U.S. at 105 (describing double
deference required in reviewing state court adjudications of
Strickland claims); Cheney, 614 F.3d at
Court concludes that the Nevada Supreme Court's denial of
this claim was not contrary to, or an unreasonable
application of, Miranda, Seifert,
Strickland, or any other clearly established federal
law as determined by the Supreme Court, and was not based on
an unreasonable determination of the facts in light of the
evidence presented. The Court will deny relief with respect
to Ground 1A.