United States District Court, D. Nevada
D. MCKIBBEN, SENIOR UNITED STATES DISTRICT JUDGE
David Edward Eugeno Abara, 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 sentence for
obtaining and/or using another's personal identification
information and burglary. After evaluating his claims on the
merits, this Court denies Abara's petition for a writ of
habeas corpus, dismisses this action with prejudice, and
denies a certificate of appealability.
summarized by this Court's previous order of August 16,
On February 2, 2006, the State of Nevada filed a second
amended information in the Second Judicial District Court for
the State of the Nevada charging petitioner, with one count
of obtaining and/or using the personal identification
information of another, one count of burglary, and being a
habitual criminal. (Exhibit 26). After a one-day jury trial,
in which petitioner represented himself, with the assistance
of stand-by counsel, the jury found petitioner guilty of
obtaining and/or using the personal identification
information of another and burglary. (Exhibits 30 & 32).
The state district court entered its judgment of conviction
on November 8, 2006, and sentenced petitioner to 96 to 240
months in prison for obtaining and/or using the personal
identification information of another and 48 to 120 months in
prison for burglary, with the burglary sentence to be served
consecutively to the first sentence and any other sentence
being served by petitioner. (Exhibit 54). The District Court
ordered petitioner to pay restitution of $323.84.
(Id.). Petitioner appealed. (Exhibit 55). On April
4, 2007, the Nevada Supreme Court affirmed petitioner's
convictions. (Exhibit 70).
On February 15, 2008, petitioner, appearing pro se,
filed a post-conviction petition in the state district court.
(Exhibit 74). On June 27, 2008, the court appointed counsel
to assist petitioner. (Exhibit 77). Subsequently, petitioner,
through counsel, filed a supplemental petition for relief.
(Exhibit 79). Without holding an evidentiary hearing, the
District Court denied post-conviction relief on May 8, 2009.
(Exhibit 83). Petitioner appealed the denial to the Nevada
Supreme Court. (Exhibit 88). On June 9, 2010, the Nevada
Supreme Court affirmed the District Court's decision.
Petitioner dispatched his original federal petition for writ
of habeas corpus to this Court on October 27, 2010. (ECF No.
12). Respondents moved to dismiss the petition. (ECF No. 15).
By order filed August 22, 2012, this Court found the petition
to be conclusory and granted petitioner leave to file an
amended petition. (ECF No. 34). In the same order, the Court
granted respondents an opportunity to file an answer or other
response. (Id.). Respondents filed a motion to
dismiss the first amended petition. (ECF No. 36). Petitioner
filed an opposition. (ECF No. 42). Respondents filed a reply.
(ECF No. 43).
(ECF No. 46 at 1-2). This Court then granted the motion to
dismiss, dismissing all counts.
appealed, and the Ninth Circuit reversed the dismissals of
grounds 1, 2, 7, and 9. (ECF No. 55). Respondents then filed
an Answer to these grounds. (ECF No. 59). Abara filed his
Reply. (ECF No. 67).
FEDERAL HABEAS REVIEW STANDARDS
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 is “difficult to
meet” and “which demands that state-court
decisions be given the benefit of the doubt.”
Cullen 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 a set of 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 992, 1000 (9th Cir.
2004); see also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), 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 to show that “there was no
reasonable basis for the state court to deny relief.”
Harrington v. Richter, 562 U.S. 86, 98 (2011).