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Jakes v. Neven

United States District Court, D. Nevada

April 5, 2018

PRESTON JAKES, Petitioner,
DWIGHT NEVEN, Respondent.



         This habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision on the merits as to the remaining claims.


         Petitioner Preston Jakes challenges his 2013 Nevada state conviction, pursuant to a guilty plea, of attempt sexual assault. Jakes originally was charged with three counts of sexual assault with a minor under fourteen years of age, one count of attempt sexual assault with a minor under fourteen years of age, and three counts of lewdness with a child under the age of fourteen, all involving his daughter. He was sentenced to 96 to 240 months along with a special sentence of lifetime supervision and a sex offender registration requirement. He challenged his conviction on state post-conviction review.

         Governing Law

         When the state courts have adjudicated a claim on the merits, the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a “highly deferential” standard for evaluating the state court ruling that is “difficult to meet” and “which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170 (2011). Under this deferential standard of review, a federal court may not grant relief merely because it might conclude that the decision was incorrect. 563 U.S. at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 563 U.S. at 181-88.

         A state court decision is “contrary to” law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, “[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous.” 540 U.S. at 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.

         A state court decision constitutes an “unreasonable application” of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but “objectively unreasonable.” E.g., Mitchell, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).

         “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The state court decision must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014)(internal quotation marks omitted).

         When a state court's factual findings are challenged, the “unreasonable determination of fact” clause of Section 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 review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.

         In the claims remaining before the Court, petitioner presents claims of ineffective assistance of counsel.

         The decisions in Tollett v. Henderson, 411 U.S. 258 (1973), and Hill v. Lockhart, 474 U.S. 52 (1985), sharply curtail the possible grounds available for challenging a conviction entered following a guilty plea. As the Supreme Court stated in Henderson:

. . . . [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the [constitutional] standards [established for effective assistance of counsel.]

411 U.S. at 267. Accordingly, "while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief." Id.

         In Hill, the court held that the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984), applies to a challenge to a guilty pleas based on alleged ineffective assistance of counsel. 474 U.S. at 58. Accordingly, a petitioner seeking to set aside a guilty plea due to ineffective assistance of counsel must demonstrate that: (1) his counsel's performance fell below an objective standard of reasonableness; and (2) the defective performance resulted in actual prejudice. 474 U.S. at 58-59.

         On the performance prong, the question is not what counsel might have done differently but rather is whether counsel's decisions were reasonable from counsel's perspective at the time. In this regard, the court starts from a strong presumption that counsel's conduct fell within the wide range of reasonable conduct. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).

         On the prejudice prong, as a general matter under Strickland, the petitioner must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee, 327 F.3d at 807-08. Application of this general principle to the specific context of a guilty plea leads to the requirement that the petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.

         Under Hill, a challenge to the voluntariness of a guilty plea potentially may be based upon a claim of ineffective of assistance of counsel also in proceedings prior to the plea. As the Supreme Court observed:

. . . . For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial ..... As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker." Id., 466 U.S., at 695, 104 S.Ct., at 2068.

474 U.S. at 59-60. Thus, an attorney's unprofessional error in failing to develop a meritorious defense may serve as a basis for overturning a guilty plea and conviction if, viewed objectively, there is a reasonable probability that, but for the error, the petitioner would not have pled guilty and would have insisted on going to trial.

         While surmounting Strickland''s high bar is "never an easy task, " federal habeas review is "doubly deferential" in a case governed by the AEDPA. In such cases, the reviewing court must take a "highly deferential" look at counsel's performance through the also "highly deferential" lens of § 2254(d). Pinholster, 563 U.S. at 190 & 202.

         The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 563 U.S. at 569.


         Ground 1(a) - Alleged Failure to Investigate

         In Ground 1(a), petitioner alleges that he was denied effective assistance of counsel in violation of, inter alia, the Sixth and Fourteenth Amendments because trial counsel failed to investigate any part of his daughter's “story.” He asserts that he asked counsel for a copy of the medical exam report and found out that there was no such report and no DNA evidence linking him to an offense. Jakes alleges that he “told counsel that there was no physical evidence at all to back up a charge for sexual assault, and to have his case dismissed, ” but counsel did not do so. He alleges that if counsel had investigated the “false statements and charges, ” he would have determined “for sure that petitioner was innocent.” (ECF No. 7, at 3.)

         As noted previously, the criminal complaint charged Jakes with a total of seven counts. The charges spanned a four-year period from December 1, 2006, through December 31, 2010. Three sexual assault counts respectively alleged digital penetration, genital penetration, and cunnilingus. An attempt sexual assault count alleged that he pushed his daughter's head toward his penis and told her to lick it “like an ice cream.” Three lewdness counts respectively alleged touching the child's genital area with his hand, doing so with his penis, and ejaculating on his daughter. (ECF No. 16-2; Exhibit 2.)

         The affidavit attached with the criminal complaint that the victim first reported the sexual abuse on April 29, 2012, approximately sixteen months after the last offense charged in the complaint. (ECF No. 16-2, at 5-7; Exhibit 2.)

         Petitioner expressly admitted the following facts at his April 24, 2013, plea colloquy:

THE COURT: Sir, are you pleading guilty because in truth and in fact on or between December 1st, 2006, and December 31st, 2010, here in Clark County, Nevada, you willfully, unlawfully, feloniously attempted to sexually assault and subject [name omitted], a female person, to sexual penetration by inserting your fingers into her genital opening and/or by placing your penis into her genital opening, and/or placing your mouth and/or tongue on or in her genital opening, and/or by pushing the head - her head towards your penis and telling her to lick your penis like an ice cream; you did so against her will or under conditions in which you knew or you should have known she was mentally or physically incapable of resisting or understanding the nature of your conduct?
THE DEFENDANT: I understand.
THE COURT: Is that what you ...

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