United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
the Court for decision is a habeas corpus petition under 28
U.S.C. § 2254 brought by Derrick Bradley, a Nevada
Prisoner. (ECF No. 20.)
I. PROCEDURAL BACKGROUND
seeks habeas relief from judgments of conviction in three
separate but related cases in the Eighth Judicial District
Court in Clark County, Nevada.
numerous charges in several cases, Bradley agreed to enter
guilty pleas to six counts of robbery with the use of a
deadly weapon, with the parties stipulating to a sentence of
12 to 30 years on each count, all to be served concurrently.
Prior to sentencing, Bradley moved to withdraw his guilty
pleas. The state district court denied the motions and, on
April 29, 2010, sentenced Bradley.
appealed from the three separate judgments of conviction. The
Nevada Supreme Court consolidated Bradley's appeals and,
on January 13, 2011, affirmed the convictions but remanded
the matter to correct a clerical error with respect to
sentencing in one of the three cases.
2011, Bradley filed motions to modify or correct the
sentences in the three district court cases. The state
district court denied the motions. Bradley appealed. On
November 18, 2011, the Nevada Supreme Court affirmed the
denial of the motions.
then filed state petitions for writ of habeas corpus. The
state district court conducted an evidentiary hearing and, in
April 2012, entered its findings of fact, conclusions of law,
and an order denying the petitions. Bradley appealed.
Nevada Supreme Court consolidated the appeals and, on January
16, 2013, affirmed the lower court's decision.
about August 7, 2013, Bradley submitted to this Court a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On August 14, 2013, this Court granted
Bradley's motion to proceed in forma pauperis
and ordered the Clerk to file the petition. With leave of the
Court, Bradley's amended petition was filed on April 30,
2014. That petition is now before the Court for a decision on
STANDARDS OF REVIEW
action is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the
standard of review under 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).
decision of a state court is "contrary to" clearly
established federal law if the state court arrives at a
conclusion opposite that reached by the Supreme Court on a
question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An "unreasonable
application" occurs when "a state-court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case." Id. at 409.
"[A] federal habeas court may not "issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly." Id. at 411.
Supreme Court has explained that "[a] federal
court's collateral review of a state-court decision must
be consistent with the respect due state courts in our
federal system." Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). The "AEDPA thus imposes a
'highly deferential standard for evaluating state-court
rulings, ' and 'demands that state-court decisions be
given the benefit of the doubt.'" Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "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 emphasized "that even a strong case for relief does
not mean the state court's contrary conclusion was
unreasonable." Id. (citing Lockyerv.
Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (describing the
AEDPA 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 citations
federal court may not second-guess a state court's
fact-finding process unless, after review of the state-court
record, it determines that the state court was not merely
wrong, but actually unreasonable." Taylor v.
Maddox, 366 F.3d 992, 999 (9th Cir. 2004);
see also Miller-El, 537 U.S. at 340 ("[A]
decision adjudicated on the merits in a state court and based
on a factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding, §
2254(d)(2)."). Because de novo review is more
favorable to the petitioner, federal courts can deny writs of
habeas corpus under § 2254 by engaging in de
novo review rather than applying the deferential AEDPA
standard. Berghuis v. Thompkins, 560 U.S. 370, 390
Ground One, Bradley claims he received ineffective assistance
of counsel, in violation of his constitutional rights,
because counsel failed to make a claim of prosecutorial
misconduct in relation to the State's identification
procedure at a grand jury hearing. According to Bradley, the
prosecutor showed a photograph of him to a robbery victim,
Jeffrey Brown, prior to the hearing, then had Brown (who had
previously been unable to do so) pick him out of a photo
line-up in front of the grand jury. Defense counsel filed a
pre-trial petition for writ of habeas corpus challenging the
identification (ECF No. 24-4), but Bradley argues that
counsel was ineffective by focusing only on "a single
charge of the crime, " rather than his "defense as
whole." (ECF No. 20 at 5.)
assistance of counsel ("IAC") claims are governed
by Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a petitioner must satisfy two
prongs to obtain habeas relief - deficient performance by
counsel and prejudice. 466 U.S. at 687. To meet the
performance prong, a petitioner must demonstrate that his
counsel's performance was so deficient that it fell below
an "objective standard of reasonableness."
Id. at 688. As to the prejudice prong, the court
"must ask if the defendant has met the burden of showing
that the decision reached would reasonably likely have been
different absent [counsel's] errors."
Strickland, 466 U.S. at 696. Put another way, a
habeas petitioner "must show 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. To demonstrate
ineffective assistance of counsel in the context of a
challenge to a guilty plea, a petitioner must show both that
counsel's advice fell below an objective standard of
reasonableness as well as a "reasonable
probability" that, but for counsel's errors, the
petitioner would not have pled guilty and would have insisted
on going to trial. Hill v. Lockhart, 474 U.S. 52,
58-59 (1985) (holding that the two-part Strickland
test applies to challenges to guilty pleas based on the
ineffective assistance of counsel).
addressing Bradley's IAC claims in his state
post-conviction proceeding, the Nevada Supreme Court
correctly identified Strickland/Hill as the
governing standard. (ECF No. 30-36 at 3.) The court
addressed the claim alleged herein as Ground One as follows:
[A]ppellant claimed that trial counsel was ineffective for
failing to adequately object to the State's
identification procedure at the grand jury hearing. Appellant
failed to demonstrate that counsel's performance was
deficient, as counsel filed a pretrial petition for a writ of
habeas corpus arguing that the State's identification
procedure was impermissibly suggestive. To the extent that
appellant claimed that counsel should have appealed the order
denying the pretrial petition, there is no right to an
interlocutory appeal from such an order. Gary v.
Sheriff, 96 Nev. 78, 80, 605 P.2d 212, 214 (1980).
Therefore, we conclude that the district court did not err in
denying this claim.
(Id. at 3.)
Nevada Supreme Court did not specifically address
Bradley's assertion that counsel was ineffective for not
bringing a broader prosecutorial misconduct claim, but this
Court must nonetheless presume that the state court
adjudicated, and rejected, that aspect of the claim on the
merits for the purposes of § 2254(d). See Johnson v.
Williams, 133 S.Ct. 1088, 1096 (2013) ("When a
state court rejects a federal claim without expressly
addressing that claim, a federal habeas court must presume
that the federal claim was adjudicated on the merits.").
reviewed de novo, however, the claim falls well
short of warranting habeas relief. Federal habeas claims of
pre-plea ineffective assistance of counsel require a showing
that the action, or inaction, of counsel prevented petitioner
from making an informed choice whether to plead guilty.
Mahrt v. Beard, 849 F.3d 1164, 1170 (9th
Cir. 2017) (citing Tollett v. Henderson, 411 U.S.
258, 267-69 (1973)). Bradley's counsel ably challenged
the prosecutor's conduct in relation to Brown's
identification when she filed the pre-trial petition. Bradley
has not proffered any evidence that alleged prosecutorial
misconduct extended beyond the Brown identification. As such,
Bradley has failed to establish that counsel performed below
the constitutional standard or that her alleged omission
impacted his choice whether to plead guilty.
One is denied.