United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE.
pro se 28 U.S.C. § 2254 first-amended habeas
petition filed by Patrick Philip DeCarolis comes before the
court for disposition on the merits (ECF No. 17).
Procedural History and Background
court has previously set forth in the order granting
respondents' motion to dismiss certain claims, on
December 2, 2010, a jury found DeCarolis guilty of count 1:
burglary; count 2: forgery; and count 3: attempted theft
(exhibit 28 to motion to dismiss, ECF No. 21). On January 4,
2012, following trial but prior to sentencing, DeCarolis
moved to dismiss his trial counsel for providing ineffective
assistance. Exhs. 40, 41. The state district court appointed
new counsel for the limited purpose of reviewing
DeCarolis' motion to dismiss his trial counsel. Exh. 43.
On February 27, 2012, the district court re-appointed
DeCarolis' trial counsel to represent DeCarolis at
sentencing. Exh. 45.
March 21, 2012, the state district court sentenced DeCarolis,
pursuant to Nevada's small habitual criminal statute, to
a term of 96 to 240 months for each of the three counts, to
run concurrently. Exh. 46, p. 23; see NRS 207.010.
Judgment of conviction was filed on April 5, 2012. Exh. 55.
The Nevada Supreme Court affirmed the convictions on February
13, 2013, and remittitur issued on March 11, 2013. Exhs. 82,
September 26, 2013, DeCarolis filed a state postconviction
habeas corpus petition. Exh. 87. The Nevada Supreme Court
affirmed the denial of the petition on July 23, 2014, and
remittitur issued on August 20, 2014. Exhs. 118, 119.
dispatched his federal petition for mailing on August 20,
2014 (ECF No. 11). On or about May 6, 2015, DeCarolis filed
his first-amended petition (ECF No. 17).
have now answered the remaining grounds (ECF No. 43), and
petitioner has replied (ECF No. 44).
AEDPA Standard of Review
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 review,
could not reasonably conclude that the finding is supported
by the record.
v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see
also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
convincing evidence. The petitioner bears the burden of
proving by a preponderance of the evidence that he is
entitled to habeas relief. Cullen, 563 U.S. at 181.
Ineffective Assistance of Counsel
sets forth several claims of ineffective assistance of trial
and appellate counsel in violation of his Sixth and
Fourteenth Amendment rights. Ineffective assistance of
counsel (IAC) claims are governed by the two-part test
announced in Strickland v. Washington, 466 U.S. 668
(1984). In Strickland, the Supreme Court held that a
petitioner claiming ineffective assistance of counsel has the
burden of demonstrating that (1) the attorney made errors so
serious that he or she was not functioning as the
“counsel” guaranteed by the Sixth Amendment, and
(2) that the deficient performance prejudiced the defense.
Williams, 529 U.S. at 390-91 (citing
Strickland, 466 U.S. at 687). To establish
ineffectiveness, the defendant must show that counsel's
representation fell below an objective standard of
reasonableness. Id. To establish prejudice, the
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Id. A
reasonable probability is “probability sufficient to
undermine confidence in the outcome.” Id.
Additionally, any review of the attorney's performance
must be “highly deferential” and must adopt
counsel's perspective at the time of the challenged
conduct, in order to avoid the distorting effects of
hindsight. Strickland, 466 U.S. at 689. It is the
petitioner's burden to overcome the presumption that
counsel's actions might be considered sound trial
assistance of counsel under Strickland requires a
showing of deficient performance of counsel resulting in
prejudice, “with performance being measured against an
objective standard of reasonableness, . . . under prevailing
professional norms.” Rompilla v. Beard, 545
U.S. 374, 380 (2005) (internal quotations and citations
omitted). When the ineffective assistance of counsel claim is
based on a challenge to a guilty plea, the
Strickland prejudice prong requires a petitioner to
demonstrate “that there is a reasnable probability
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
state court has already rejected an ineffective assistance
claim, a federal habeas court may only grant relief if that
decision was contrary to, or an unreasonable application of,
the Strickland standard. See Yarborough v.
Gentry, 540 U.S. 1, 5 (2003). There is a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Id.
United States Supreme Court has described federal review of a
state supreme court's decision on a claim of ineffective
assistance of counsel as “doubly deferential.”
Cullen, 563 U.S. at 190 (quoting Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)). The Supreme Court
emphasized that: “We take a ‘highly
deferential' look at counsel's performance . . .
through the ‘deferential lens of §
2254(d).'” Id. at 1403 (internal citations
omitted). Moreover, federal habeas review of an ineffective
assistance of counsel claim is limited to the record before
the state court that adjudicated the claim on the merits.
Cullen, 563 U.S. at 181-84. The United States
Supreme Court has specifically reaffirmed the extensive
deference owed to a state court's decision regarding
claims of ineffective assistance of counsel:
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, ” id. at 689, 104 S.Ct. 2052;
Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in
tandem, review is “doubly” so, Knowles,
556 U.S. at 123. The Strickland standard is a
general one, so the range of reasonable applications is
substantial. 556 U.S. at 124. 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 whether
there is any reasonable argument that counsel satisfied
Strickland's deferential standard.
562 U.S. at 105. “A court considering a claim of
ineffective assistance of counsel must apply a ‘strong
presumption' that counsel's representation was within
the ‘wide range' of reasonable professional
assistance.” Id. at 104 (quoting
Strickland, 466 U.S. at 689). “The question is
whether an attorney's representation amounted to
incompetence under prevailing professional norms, not whether
it deviated from best practices or most common custom.”
Id. (internal quotations and citations omitted).
discussed below, DeCarolis has failed to show that the Nevada
Supreme Court's decision on any of his IAC claims was
contrary to or involved an unreasonable application of
Strickland. 28 U.S.C. § 2254(d).
claims several instances of ineffective assistance of trial
and appellate counsel. Trial transcripts reflect the
following. Walmart employee Nicole Moran testified that
DeCarolis came into the Walmart money center and presented a
payroll check from The Cool Art Company payable to Patric
DeCarolis to cash, along with a payroll stub and an expired
driver's license that appeared to have been altered to
read “Patric DeCarolis” instead of “Patrick
DeCarolis.” Exh. 23, pp. 121-138. She stated that she
immediately believed the check was fake so she advised her
manager who, after unsuccessfully trying to verify that The
Cool Art Company existed, called asset ...