United States District Court, D. Nevada
P. GORDON, UNITED STATES DISTRICT JUDGE.
habeas matter under 28 U.S.C. § 2254 comes before the
Court for a decision on the merits as to the remaining
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.
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.
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.
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).
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).
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.
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.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
claims remaining before the Court, petitioner presents claims
of ineffective assistance of counsel.
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."
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.
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).
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.
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.
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
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.
1(a) - Alleged Failure to Investigate
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.)
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.)
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.)
expressly admitted the following facts at his April 24, 2013,
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 ...