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Tatum v. Neven

United States District Court, D. Nevada

March 26, 2018

SYLVESTER SANFORD TATUM, Petitioner,
v.
D.W. NEVEN, et al., Respondents.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE.

         This pro se 28 U.S.C. § 2254 habeas petition filed by Sylvester Sanford Tatum comes before the court for disposition on the merits (ECF No. 7).

         I. Procedural History and Background

         As this court has previously set forth in the order granting in part the motion to dismiss, on October 28, 2010, a jury convicted Tatum of one count of trafficking in a controlled substance and one count of possession of a controlled substance (exhibit 46 to respondents' motion to dismiss, ECF No. 10).[1] The state district court sentenced Tatum to ten to twenty-five years for the trafficking count and twelve to thirty-two months for the possession count, to run concurrently. Id. Judgment of conviction was filed on November 1, 2010. Id.[2]

         The Nevada Supreme Court affirmed the convictions on October 5, 2011, and remittitur issued on November 1, 2011. Exhs. 65, 67, 68. The Nevada Supreme Court affirmed the state district court's denial of Tatum's first state postconviction petition on June 12, 2014, and remitittur issued on July 9, 2014. Exhs. 77, 108, 124, 135, 136. The state district court denied Tatum's second postconviction petition, and the Nevada Court of Appeals affirmed the denial on February 24, 2015. Exhs. 132, 147, 160.

         Tatum failed to indicate the date he dispatched his federal petition for mailing, but he signed the petition on July 31, 2014 (ECF No. 7). Respondents now answer the remaining claim, ground 2(B) (ECF No. 33). Tatum did not file a reply.

         II. Legal Standards & Analysis

         a. AEDPA Standard of Review

         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] ...


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