United States District Court, D. Nevada
ORDER (ECF NOS. 3, 65)
P. GORDON UNITED STATES DISTRICT JUDGE.
the court for a decision on the merits is an application for
a writ of habeas corpus filed by Earnest Dean Carpenter, a
Nevada prisoner. ECF No. 3.
March 16, 2007, Carpenter was convicted of burglary, pursuant
to a guilty plea, in the Second Judicial District Court for
Nevada. The district court adjudicated Carpenter a habitual
criminal and sentenced him to life in prison without the
possibility of parole. Carpenter appealed to the Nevada
February 13, 2008, the Supreme Court of Nevada affirmed the
judgment of conviction. On September 30, 2008, Carpenter
filed a proper person petition for a writ of habeas corpus in
the state district court. With the assistance of appointed
counsel, he filed a supplemental petition on January 20,
2009. On May 11, 2009, the state district court dismissed
most of Carpenter's claims, but ordered an evidentiary
hearing on his claim that he received ineffective assistance
of counsel due to counsel's failure to adequately
investigate his theory of defense, properly advise him of his
rights, and present evidence at sentencing. After hearing the
testimony of Carpenter's guilty plea/sentencing counsel,
the district court denied the claim. Carpenter appealed.
opening brief before the Supreme Court of Nevada, Carpenter
raised only one claim, arguing that trial counsel was
ineffective for failing to present certain mitigating
evidence at sentencing. On March 17, 2011, the Supreme Court
of Nevada affirmed the denial of Carpenter's state habeas
24, 2011, Carpenter initiated this federal habeas
proceedings. Respondents moved to dismiss the petition,
arguing that certain claims in the petition were unexhausted.
On January 11, 2011, this court granted the motion, in part,
concluding that Grounds 1-B and 2 were exhausted but Grounds
3(a), 3(b), 3(c), 3(d), 3(e), 3(f), and 3(h) were
was granted a stay and abeyance to allow him to return to
state court. On May 1, 2013, he filed a second state habeas
petition raising the claims this court found unexhausted. The
state district court dismissed the petition as procedurally
defaulted. The Nevada Supreme Court affirmed that decision.
to Carpenter's motion, the stay was lifted on July 30,
2014. On September 29, 2014, respondents moved to dismiss
grounds 3(a)-(f), and (h) as procedurally defaulted. This
court granted the motion.
court now addresses Carpenter's remaining claims -
Grounds 1, 1-B, 2, and 3(g) - on the merits.
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 than 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 Lockyer v.
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 (2010).
ANALYSIS OF CLAIMS
Ground 1, Carpenter argues that his sentence of life without
the possibility of parole for a non-violent crime constitutes
cruel and unusual punishment in violation of the Eighth and
presented Ground 1 in the direct appeal of his conviction and
sentence. ECF No. 7-19. The Nevada Supreme Court addressed
the claim as follows:
Appellant contends that the district court abused its
discretion by imposing an excessive sentence. Citing to the
dissent in Tanksley v. State for support, appellant
argues that this court should review the sentence imposed by
the district court to determine whether justice was done.
Appellant argues that his sentence was excessive given that
his six prior felony convictions were primarily non-violent
property offenses and occurred over a span of thirty
years. We disagree with appellant's
The Eighth Amendment does not require strict proportionality
between crime and sentence, but forbids only an extreme
sentence that is grossly disproportionate to the
crime. Regardless of its severity, a sentence
that is within the statutory limits is not
“‘cruel and unusual punishment unless the statute
fixing punishment is unconstitutional or the sentence is ...