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Depenbrock v. Neven

United States District Court, D. Nevada

March 13, 2018

JEFFREY SCOTT DEPENBROCK, Petitioner,
v.
D.W. NEVEN, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         This counseled second-amended 28 U.S.C. § 2254 habeas petition by petitioner Jeffrey Scott Depenbrock is before the court for adjudication on the merits (ECF No. 39).

         I. Background & Procedural History

         On July 12, 2007, Depenbrock pleaded guilty in state case no. C235011 to possession of credit or debit card without cardholder's consent (exhibit 9).[1] He also pleaded guilty to possession or sale of document or personal identifying information to establish false status or identity in case no. C234564. Id. The State agreed to dismiss two other cases and had no objection to Depenbrock's release on his own recognizance after entry of the plea. Id. Pursuant to the guilty plea the parties stipulated to a 5 to 20-year sentence under the small habitual criminal statute; however, if Depenbrock failed to appear for sentencing, the stipulated sentence would be life with the possibility of parole after ten years. Id.; Exh. 12. On August 8, 2007, Depenbrock failed to appear for sentencing, and a bench warrant issued for his arrest. Exh. 10. After his arrest, the state district court imposed the stipulated sentence of ten years to life, and judgment of conviction was entered on February 21, 2008. Exhs. 12, 13.

         Depenbrock filed a pro se motion for modification of sentence on April 15, 2008, which the state district court denied. Exhs. 14, 17. On December 1, 2008, he filed a proper person state postconviction petition for a writ of habeas corpus. Exh. 22. The state district court denied the petition. Exh. 27. On February 3, 2010, the Nevada Supreme Court affirmed the denial of the petition in part, reversed in part and remanded for an evidentiary hearing on two claims: 1) whether his counsel was ineffective for failing to file a direct appeal; and 2) whether he entered the guilty plea voluntarily, knowingly, and intelligently because Depenbrock alleged that the State did not fulfill the part of the plea agreement that provided for the dismissal of two other cases. Exh. 44. The Nevada Supreme Court also concluded that the district court did not err in denying ten other claims. Id.

         On remand, the state district court appointed counsel, and Depenbrock filed a counseled supplemental petition. Exhs. 46, 47. The supplemental petition indicated that counsel's research revealed that the two other cases had in fact been dismissed, per the guilty plea agreement. Id. The state district court held an evidentiary hearing and subsequently denied the remaining claim. Exhs. 52, 59. The Nevada Supreme Court affirmed the denial of the petition on May 10, 2012, and remittitur issued on June 6, 2012. Exhs. 77, 78.

         Depenbrock dispatched his federal habeas petition for mailing on July 24, 2012 (ECF No. 6). Depenbrock's counseled, second-amended petition is before the court for disposition on the merits (ECF No. 39). Respondents have filed an answer, and Depenbrock replied (ECF Nos. 40, 45).

         II. Legal Standards

         A. Antiterrorism and Effective Death Penalty Act (AEDPA)

         28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:

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.

         The AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). This Court's ability to grant a writ is limited to cases where “there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). 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 state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 694.

         A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Lockyer, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

         To the extent that the state court's factual findings are challenged, the “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause requires that the federal courts “must be particularly deferential” to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was “clearly erroneous.” 393 F.3d 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 ...

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