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McCurdy v. Williams

United States District Court, D. Nevada

September 20, 2017

MARC McCURDY, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

         Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Marc McCurdy, a Nevada prisoner. ECF No. 10.

         I. PROCEDURAL BACKGROUND[1]

         On June 22, 2009, the State of Nevada filed a criminal complaint charging McCurdy with (1) driving and/or being in actual physical control while under the influence of intoxicating liquor (after having previously been convicted of a felony DUI), (2) possession of a controlled substance, (3) driving while license revoked/suspended, and (4) failure to maintain travel lane. After a preliminary hearing on February 11, 2010, the State filed an information charging him with the first two crimes, both felonies. Then, on May 25, 2011, the State filed an amended information indicating that it would seek to have McCurdy adjudicated a habitual criminal if he were to be found guilty of either of the charged crimes. The amended information alleged that McCurdy had previously been convicted of the following eleven felonies: (1) in 1978 aggravated robbery with use of a deadly weapon; (2) in 1978 aggravated assault; (3) in 1979 aggravated assault with a deadly weapon and shooting within an occupied dwelling; (4) in 1988 felony DUI (fourth offense); (5) in 1988 felony DUI (fourth offense); (6) in 1988 felony DUI and leaving the scene of an accident involving injuries; (7) in 1993 felony DUI; (8) in 1993 felony DUI; (9) in 1997 habitual offender driving on a revoked license; (10) in 2001 bank robbery; and (11) in 2002 assault with a deadly weapon, discharging a firearm at or into a vehicle and possession of a firearm by ex-felon.

         On March 27, 2012, McCurdy entered a guilty plea to driving and/or being in actual physical control while under the influence of intoxicating liquor - a felony. Under the terms of the guilty plea agreement, the State retained the right to argue at sentencing, but agreed to not seek habitual criminal treatment. After a hearing on May 31, 2012, McCurdy was sentenced to a maximum of 180 months in prison with parole eligibility after serving a minimum of 72 months. The judgment of conviction was entered on June 12, 2012. McCurdy did not file a direct appeal.

         In October 2012, he filed a state post-conviction petition for habeas corpus relief. After the state district court denied the petition on the merits, McCurdy appealed to the Nevada Supreme Court. In January 2014, the Nevada Supreme Court affirmed the lower court's denial of relief.

         In April 2014, McCurdy filed a second state post-conviction petition for habeas corpus relief, then followed that with a third petition in June 2014. In October 2014, the state district court entered an order dismissing the petitions on procedural grounds. McCurdy appealed to the Nevada Supreme Court. In February 2015, the Nevada Supreme Court affirmed the lower court's decision.

         McCurdy mailed the federal petition initiating this case on May 1, 2014. On October 27, 2014, he filed the amended petition. On May 26, 2015, respondents filed a motion to dismiss, arguing that Grounds Six and Seven are procedurally defaulted. ECF No. 16. Alternatively, respondents argued that the Fourth Amendment claim in Ground Six should be dismissed under Stone v. Powell[2] or Tollett v. Henderson.[3] Id. The court granted the motion.

         McCurdy's remaining claims are now before the court for a decision on the merits.

         II. FACTUAL BACKGROUND

         The transcript of McCurdy's preliminary hearing provides the factual circumstances underlying his conviction.[4]

         Theresa Michelle Reynolds, a flagger for Southern Nevada Paving, testified to the following. At 8:00 a.m. on February 23, 2009, she was directing traffic at a road construction site near the intersection of Twain Avenue and Paradise Road in Las Vegas, when she saw a white Cadillac approach the construction site. She signaled the driver (whom she later identified as McCurdy) to stop so a truck could exit the site. The driver stopped, but his car almost hit her. When she turned her sign around to let the driver proceed, she noticed that he was passing out. The driver behind the Cadillac honked, which woke up McCurdy, who then hit the gas and took off quickly.

         Approximately fifteen minutes later, Reynolds saw the same white Cadillac approaching from the opposite direction. She saw the Cadillac hit a traffic barricade and knock it into the oncoming traffic lane. The Cadillac then pulled into Maddy's, a nearby bar, and parked. The construction job inspector went over to the parking lot and found McCurdy passed out behind the wheel. The inspector called the police, but before the police arrived, McCurdy woke up and went into the bar.

         Ralph Pennington, the bartender at Maddy's that morning, testified to the following. McCurdy was a regular patron at the bar. At 6:30 a.m. on February 23, 2009, he served McCurdy two vodka and ginger ales. After consuming the drinks, McCurdy left the bar at around 7:15 A.M. When he returned around 8:15 or 8:30 a.m., Pennington served him another vodka and ginger ale, but because McCurdy showed clear signs intoxication, he told the other bartender not to serve McCurdy any more drinks. About that time, police entered the bar and asked McCurdy to exit.

         Officer Gutierrez testified that McCurdy's speech was slurred, his eyes were bloodshot, he was staggering and disoriented, and his breath smelled of alcohol. He further testified to the following. The flagger identified McCurdy as the driver of the Cadillac. McCurdy failed a one-leg-stand test and a HGN test. Based on his recollection, Officer Gutierrez did not have McCurdy perform the walk-and-turn test because McCurdy could not maintain his balance. He then arrested McCurdy for DUI. Anthony Oblak, a correctional officer at the Clark County Detention Center, testified that a search incident to McCurdy's arrest resulted in the discovery of a clear baggie containing a white substance in his left shirt pocket.

         The State presented evidence that the white substance tested positive for methamphetamine and that McCurdy's blood alcohol content, based on blood draw at 9:45 a.m. the morning of his arrest, was .323.

         III. STANDARDS OF REVIEW

         This 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; or
(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).

         A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite 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.

         The 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 omitted).

         "[A] 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).

         IV. ANALYSIS OF CLAIMS

         Grou ...


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