United States District Court, D. Nevada
D. MCKIBBEN, UNITED STATES DISTRICT JUDGE
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (ECF No. 4) comes before the court
for consideration on the merits. Respondents have answered
(ECF No. 8). Petitioner has not filed a reply, and the time
for doing so has expired.
April 14, 2005, following a three-day jury trial, a jury
convicted petitioner of multiple counts, including sexual
assault, statutory sexual seduction, kidnapping, and
pandering of a child, and a judgment of conviction was
entered accordingly. (Exh. 5 (Tr. 10-11); Exh.
On appeal, the Supreme Court of Nevada reversed the pandering
conviction and one of the kidnapping convictions. (Exh. 7).
An amended judgment of conviction was entered on June 26,
2006. (Exh. 8).
petitioner filed a postconviction petition for writ of habeas
corpus in state court. (Exh. 9). Following an evidentiary
hearing, the trial court denied the petition. (Exhs. 14, 15
& 17). On appeal, the Nevada Supreme Court affirmed.
(Exh. 21). Petitioner then filed the instant petition for
writ of habeas corpus pursuant to 2254.
U.S.C. § 2254(d) provides the legal standards for this
court's consideration of the merits of the petition in
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.”
Andrade, 538 U.S. 63 (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell
v. Cone, 535 U.S. 685, 694 (2002)).
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.”
Andrade, 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 ...