United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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).
Background & Procedural History
12, 2007, Depenbrock pleaded guilty in state case no. C235011
to possession of credit or debit card without
cardholder's consent (exhibit 9). 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.
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.
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.
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).
Antiterrorism and Effective Death Penalty Act
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;
(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.
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).
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.
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).
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
.... [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 ...