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Green v. Baker

United States District Court, D. Nevada

May 30, 2017

DANIEL GREEN, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court are the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 4) and respondents' answer (ECF No. 34). The Court finds that petitioner is not entitled to relief on the remaining ground, and the Court denies the petition.

         II. RELEVANT BACKGROUND

         In the Third (later Tenth) Judicial District Court of the State of Nevada, petitioner was charged with one count of lewdness with a child under age 14, four counts of use of a minor as a subject in producing pornography, three counts of unlawful obtaining and using personal identifying information of another person to harm person or for unlawful purpose, and two hundred sixty-five counts of possession of child pornography. (Exh. 18 (ECF No. 14-20).)

         Paul Drakulich was appointed to represent petitioner. The attorney-client relationship broke down. Petitioner wanted Drakulich to move to suppress the evidence based upon a defective search warrant, and Drakulich declined. Drakulich heard petitioner threaten to harm jail and police officers, and Drakulich reported those threats. Petitioner also did not want any other attorney to represent him. (Exh. 65 (ECF No. 16-15).) After canvassing petitioner under Faretta v. California, 422 U.S. 806 (1975), the state district court allowed petitioner to represent himself. (Exh. 68 (ECF No. 16-18).) The state district court appointed Chet Kafchinski to act as standby counsel. The state district court later added Jacob Sommer as standby counsel.

         Petitioner filed proper-person motions, including a motion to suppress based upon a defective search warrant. (See Exh. 97 (ECF No. 17-21).) The state district court scheduled a hearing on the suppression motion for June 4, 2009. (Exh. 102 (ECF No. 18-2). The hearing did not proceed because that same day petitioner accepted a no-contest plea agreement under North Carolina v. Alford, 400 U.S. 25 (1970). (Exh. 104 (ECF No. 18-4).) Under that agreement, petitioner was convicted of ten counts of possession of child pornography, one count of attempt to commit lewdness with a child under 14, one count of attempt to commit use of a minor as a subject in producing pornography, and one count of unlawful obtaining and using personal identifying information of another person to harm person or for unlawful purpose. (Exh. 114 (ECF No. 18-14).)

         Petitioner appealed. The Nevada Supreme Court affirmed. It held that petitioner could not argue claims that arose prior to the entry of his plea. It also held that to the extent that petitioner was challenging the validity of his guilty plea, he needed to raise that claim first in the state district court. (Exh. 150 (ECF No. 20).)

         Petitioner then filed a post-conviction habeas corpus petition in the state district court. That court appointed counsel and held an evidentiary hearing. The state district court denied the petition.

         Petitioner appealed, and the Nevada Supreme Court affirmed. It held that petitioner's claim that he was deprived of effective self-representation was a pre-plea claim that was barred by his plea. It also held in the alternative that the claim was without merit. The Nevada Supreme Court held that petitioner's guilty plea was valid. Finally, the Nevada Supreme Court held that petitioner received effective assistance of standby counsel. (Exh. 210 (ECF No. 22-10).)

         Petitioner then commenced this action. (ECF No. 1.)

         III. DISMISSAL OF GROUNDS 1 AND 2

         The petition originally contained three grounds for relief. (ECF No. 4.) The Court dismissed grounds 1 and 3. (ECF No. 33.) Ground 1 contained a claim that Drakulich provided ineffective assistance because he would not file a motion to suppress. Petitioner's plea barred this claim. (Id. at 2.) Ground 1 also contained a claim that standby counsel provided ineffective assistance. Petitioner had no right to effective assistance of counsel, standby or otherwise, once he decided to represent himself. (Id.) Ground 3 was a claim that the state failed to provide petitioner the opportunity to prepare his own defense, based upon the allegations in ground 1. This ground was dismissed for the same reasons why ground 1 was dismissed. (Id. at 2-3.) Reasonable jurists would not find the Court's conclusions to be debatable or wrong, and the Court will not issue a certificate of appealability on these grounds.

         IV. ...


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