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Redeker v. Neven

United States District Court, D. Nevada

August 23, 2017

Arie Robert Redeker Petitioner
v.
Dwight Neven, et al., Respondents

          ORDER OF DISMISSAL

         Petitioner Arie Robert Redeker, a prisoner in the custody of the State of Nevada, brings this habeas action under 28 U.S.C. § 2254 to challenge his 2006 Nevada state conviction for second-degree murder with the use of a deadly weapon. After evaluating his claims on the merits, I deny Redeker's petition for a writ of habeas corpus, dismiss this action with prejudice, and deny a certificate of appealability as to all grounds except for Ground 5, as to which I grant a certificate of appealability.

         Background

         Tuk Lannon was strangled to death. Arie Robert Redeker was bound over after a preliminary hearing on December 10, 2002, on charges of first-degree murder. (Exhibit 6).[1] The State filed a notice of intent to seek the death penalty nine days later alleging two aggravating circumstances, only one of which survived a petition to the Supreme Court of Nevada for a writ of mandamus: Redeker was under a sentence of imprisonment at the time of the murder, namely that he was on parole. (Exhibit 7; Exhibit 82; Exhibit 83).

         Following a jury trial, Redeker was convicted of second-degree murder with the use of a deadly weapon on July 20, 2006. (Exhibit 134; Exhibit 137). He was sentenced to two terms of life in prison with the possibility of parole after ten years, to run consecutively. (Exhibit 139; Exhibit 140).

         Redeker appealed, and the Supreme Court of Nevada affirmed. (Exhibit 152; Exhibit 159). Remittitur issued on February 17, 2009. (Exhibit 162). Redeker filed a petition for a writ of habeas corpus in state court. (Exhibit 174; Exhibit 175). After holding an evidentiary hearing, the state district court denied the petition. (Exhibit 183; Exhibit 184). Redeker appealed, and the Supreme Court of Nevada affirmed. (Exhibit 199; Exhibit 204). Remittitur issued on June 4, 2012. (Exhibit 207).

         Redeker then filed a petition for a writ of habeas corpus with this Court. (ECF No. 1). Redeker filed a second amended petition on January 18, 2013. (ECF No. 28). The State moved to dismiss, which I granted in part and denied in part. (ECF No. 41). In response to that order, Redeker elected to abandon the claims that I found unexhausted. (ECF No. 44).[2]

         Standard of review

         When a state court has adjudicated a claim on the merits, the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating the state court ruling; that standard is "difficult to meet" and "demands that state-court decisions be given the benefit of the doubt." Citllen v. Pinholster, 563 U.S. 170 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. Id. at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court, or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. Id. at 181-88. The petitioner bears the burden of proof. Id. at 181.

         A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. The Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. And "a federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." Id. at 16. A decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.

         A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." See, e.g., Id. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). When a state court's factual findings based on the record before it are challenged, the "unreasonable determination of fact" clause of 28 U.S.C. § 2254(d)(2) controls, which requires federal courts to be "particularly deferential" to state court factual determinations. See, e.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This standard is not satisfied by a mere showing that the state court finding was "clearly erroneous." Id. at 973. Rather, AEDPA requires substantially more deference:

[I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 932, 1000 (9th Cir. 2004); see also Laberi, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), a state court's factual findings are presumed to be correct and the petitioner must rebut that presumption by "clear and convincing evidence." In this inquiry, federal courts may not look to any factual basis not developed before the state court unless the petitioner both shows that the claim relies on either (a) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" or (b) "a factual predicate that could not have been previously discovered through the exercise of due diligence, " and shows that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2).

         When a state court summarily rejects a claim, it is the petitioner's burden still to show that '"there was no reasonable basis for the state court to deny relief." Harrington v. Richter, 562 U.S. 86, 98(2011).

         Discussion

         A. ...


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