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MiChel v. Williams

United States District Court, D. Nevada

January 9, 2018

DAVID WALTER MICHEL, Petitioner,
v.
BRIAN E. WILLIAMS, SR., et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II United States District Judge

         Before the court are the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 11), respondents' answer (ECF No. 24), and petitioner's reply. The court finds that relief is not warranted, and the court denies the petition.

         The court takes its statement of facts from the report of the arresting police officer. Ex. 2 (ECF No. 16). Petitioner pleaded guilty, and thus the statements in the report were not tested by cross-examination. For the purposes of this order, the court will assume that the prosecution could have presented these facts by testimony from the relevant witnesses.

         On August 12, 2009, petitioner entered a Wal-Mart store, and he started taking items from the shelves. A loss-prevention officer noticed petitioner and suspected that petitioner was intending to shoplift the items. In the electronics department, petitioner paid for a couple of items that he had selected in that department, but he walked out of the store without paying for any of the other items. The loss-prevention officer confronted petitioner, and petitioner presented a receipt that the officer concluded was fraudulent. The printing on the front of the receipt was larger than it should have been.

         A bar code was at the bottom of the receipt, and receipts from that store normally do not contain bar codes. The loss-prevention officer called the police.

         The police officer arrested petitioner for burglary, because petitioner entered the store without enough money to pay for the items that he had taken. The police officer then searched petitioner's wallet and found two identification cards that did not belong to him. One was a valid Florida driver's license, but in somebody else's name. The other was a stolen Nevada driver's license. The police officer charged petitioner also with possession of stolen property.

         The police officer allowed petitioner, in handcuffs, to stand in front of the police car while she completed her paperwork. Petitioner then ran, and the officer chased him. Petitioner entered a car that was waiting for him, and the car drove off. A search found the car, petitioner's sister, who was driving the car, and petitioner himself. Petitioner was charged with escape while being in custody for a felony crime.

         In the justice court, petitioner was charged with burglary, escape, two counts of possession of personal identifying information of another, and petit larceny. Petit larceny is a misdemeanor, the other counts all were felonies.[1] Petitioner waived a preliminary hearing, and case was bound over to the state district court.

         In the state district court, the parties agreed on a plea. Petitioner pleaded guilty to one count of burglary and one count of escape. The other counts were dismissed, and the prosecution agreed not to seek adjudication of petitioner as a habitual criminal. Ex. 9 (ECF No. 16). For burglary, the state district court sentenced petitioner to a maximum term of 120 months and a minimum term of 26 months. For escape, the state district court also sentenced petitioner to a maximum term of 120 months and a minimum term of 26 months, running consecutively to the sentence for burglary. Ex. 12 (ECF No. 16). Petitioner did not appeal, which is the topic of ground 1 of the petition.

         Petitioner filed a post-conviction habeas corpus petition and supporting memorandum in state court pro se. Ex. 13, Ex. 14 (ECF No. 16). The state responded to that petition. Ex. 18 (ECF No. 16). Petitioner then retained counsel. Ex. 19 (ECF No. 16). Now represented by counsel, petitioner filed a reply. Ex. 20 (ECF No. 17). The state filed a supplemental response. Ex. 23 (ECF No. 17). Petitioner also wrote an amended habeas corpus petition pro se. Ex. 21 (ECF No. 17). It is unclear whether the state district court ever filed this document. The copy that the court possesses is not marked as filed. Furthermore, the on-line docket of the state court does not show the receipt of any amended petition.[2] Even if it was, the state district court ignored the document for two reasons. First, petitioner was represented by counsel and could not file documents pro se. Second, petitioner never received leave to amend his petition. The state district court denied the petition after holding a hearing. Ex. 30 (ECF No. 17).

         Petitioner appealed. At first, petitioner's retained counsel still represented him and filed a fast-track statement for the appeal. Ex. 39 (ECF No. 17). However, the Nevada Supreme Court granted petitioner's request to allow counsel to withdraw, and the Nevada Supreme Court decided to review the complete record instead of relying upon the fast-track statement. Ex. 48 (ECF No. 19). The Nevada Supreme Court then affirmed the denial of the petition. Ex. 59 (ECF No. 19).

         Petitioner then commenced this action. The court denied respondents' motion to dismiss (ECF No. 15), finding that petitioner had exhausted his state-court remedies for all grounds. The answer followed.

         The court will discuss petitioner's grounds for relief out of the order in which petitioner presented them. The Nevada Supreme Court ruled upon what are now grounds 2, 3, and 5 in one paragraph. Ground 1, a claim that petitioner was deprived of a direct appeal, is better analyzed at the end of the court's ruling.

         All grounds for relief are claims of ineffective assistance of counsel. A petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation “fell below an objective standard of reasonableness, ” Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that the attorney's deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” id. at 694. “[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.

         Strickland expressly declines to articulate specific guidelines for attorney performance beyond generalized duties, including the duty of loyalty, the duty to avoid conflicts of interest, the duty to advocate the defendant's cause, and the duty to communicate with the client over the course of the prosecution. 466 U.S. at 688. The Court avoided defining defense counsel's duties so exhaustively as to give rise to a “checklist for judicial evaluation of attorney performance. . . . Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” Id. at 688-89.

         Review of an attorney's performance must be “highly deferential, ” and must adopt counsel's perspective at the time of the challenged conduct to avoid the “distorting effects of hindsight.” Strickland, 466 U.S. at 689. A reviewing court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. (citation omitted).

         The Sixth Amendment does not guarantee effective counsel per se, but rather a fair proceeding with a reliable outcome. See Strickland, 466 U.S. at 691-92. See also Jennings v. Woodford, 290 F.3d 1006, 1012 (9th Cir. 2002). Consequently, a demonstration that counsel fell below an objective standard of reasonableness alone is insufficient to warrant a finding of ineffective assistance. The petitioner must also show that the attorney's sub-par performance prejudiced the defense. Strickland, 466 U.S. at 691-92. There must be a reasonable probability that, but for the attorney's challenged conduct, the result of the proceeding in question would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” . . . and when the two apply in tandem, review is “doubly” so . . . . The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether ...

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