United States District Court, D. Nevada
ORDER OF DISMISSAL
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.
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). 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).
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).
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.
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.
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.
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.
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.
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).
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,