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Abara v. Palmer

United States District Court, D. Nevada

September 18, 2017

DAVID EDWARD EUGENO ABARA, Petitioner,
v.
JACK PALMER, et al., Respondents

          ORDER

          HOWARD D. MCKIBBEN, SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. BACKGROUND

         As summarized by this Court's previous order of August 16, 2013:

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. (Exhibit 95).
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).[1] This Court then granted the motion to dismiss, dismissing all counts.

         Abara 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).

         II. FEDERAL HABEAS REVIEW STANDARDS

         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 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.

         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 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.

         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 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

         Under 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).

         When a 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).

         III. ANALYSIS

         A. ...


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