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Irive v. Gentry

United States District Court, D. Nevada

April 25, 2018

RICARDO IRIVE, Petitioner,
v.
JO GENTRY, et al., Respondents. RICARDO IRIVE, Petitioner,
v.
JO GENTRY, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         These two actions are both petitions for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Ricardo Irive, a Nevada prisoner. In each case, the respondents have filed an answer, responding to Irive's claims, and Irive has filed a reply. Both cases are fully briefed, and before the Court for resolution with respect to the merits of Irive's claims. As the two petitions raise certain identical issues, the Court rules on both in this order. The Court will deny Irive's habeas petitions.

         II. BACKGROUND

         A. No. 3:15-cv-00487-MMD-WGC-The Robbery at the Pawnshop

         Irive was convicted on August 27, 2010, following a jury trial in Nevada's Eighth Judicial District Court, in Clark County, of conspiracy to commit robbery and robbery with use of a deadly weapon. (See Judgment of Conviction, Exh. 13 (ECF No. 14-14).) The crimes involved Irive and his associates robbing two customers of a Las Vegas pawnshop in the parking lot outside the pawnshop. Irive was sentenced for the conspiracy to commit robbery to thirteen months to five years in prison; for the robbery with use of a deadly weapon, he was sentenced to six to fifteen years in prison and a consecutive four to fifteen years in prison for the use of the deadly weapon, to run concurrently with the sentence for the conspiracy. (See id.)

         Irive appealed, and the Nevada Supreme Court affirmed on November 18, 2011. (See Order of Affirmance, Exh. 17 (ECF No.14-18).)

         Irive then filed a petition for writ of habeas corpus in the state district court on September 6, 2012. (See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 24 (ECF No. 14-25); Supplemental Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus, Exh. 31 (ECF Nos. 15-6, 15-7).) The state district court held an evidentiary hearing, and then denied the petition. (See Transcript of Evidentiary Hearing, March 6, 2014, Exh. 35 (ECF No. 15-11); Transcript of Hearing, April 7, 2014, Exh. 36 (ECF No. 15-12); Findings of Fact, Conclusions of Law and Order, Exh. 39 (ECF No. 15-15).) Irive appealed from that ruling, and the Nevada Supreme Court affirmed on July 21, 2015. (See Order of Affirmance, Exh. 43 (ECF No. 15-19).)

         On February 9, 2015, Irive filed a second state habeas petition. (See Second Petition for Writ of Habeas Corpus, Exh. 45 (ECF No. 15-21).) The state district court dismissed that petition, ruling it procedurally barred. (See Court Minutes, July 20, 2015, Exh. 48 (ECF No. 15-24); Findings of Fact, Conclusions of Law and Order, Exh. 49 (ECF No. 15-25).) There is no indication in the record that Irive appealed from the dismissal of his second state habeas petition.

         This Court received Irive's original federal habeas petition, initiating this action- No. 3:15-cv-00487-MMD-WGC-pro se, on September 23, 2015. (See Petition for Writ of Habeas Corpus (ECF No. 6).) Respondents filed a motion to dismiss Irive's original petition on December 3, 2015 (ECF No. 14). On May 4, 2016, the Court appointed counsel to represent Irive, and denied the motion to dismiss, without prejudice, as moot. (See Order entered May 4, 2016 (ECF No. 22).)

         With counsel, Irive then filed an amended petition for writ of habeas corpus (ECF No. 30), now the operative petition in this case, on December 23, 2016. Irive's amended petition asserts the following grounds for relief:

1. Irive received ineffective assistance of counsel, in violation of his federal constitutional rights, “when his trial attorney failed to adequately represent him during the plea bargaining stage by allowing a plea negotiation offered by the district attorney to lapse.” (Amended Petition (ECF No. 30) at 14.)
2. Irive's conviction and sentence are in violation of his federal constitutional rights because the State “produced insufficient evidence at trial to support a deadly weapon enhancement.” (Id. at 17.)
3. Irive received ineffective assistance of counsel on his direct appeal, in violation of his federal constitutional rights, because of “counsel's failure to preserve the record for Nevada Supreme Court review of the assignment of error that the trial court imposed a harsher sentence because Irive exercised his constitutional right to a jury trial.” (Id. at 21.)

         On February 14, 2017, respondents filed a motion to dismiss Irive's amended petition (ECF No. 32), contending that Ground 2 is barred by the statute of limitations. The Court denied the motion to dismiss on August 7, 2017 (ECF No. 37).

         Respondents then filed an answer, responding to all three of Irive's claims, on November 6, 2017 (ECF No. 38). Irive filed a reply on February 27, 2018 (ECF No. 43).

         B. No. 2:16-cv-00241-MMD-WGC - The Kidnapping and Robbery

         Irive's other case involves Irive and an associate picking up a woman along a Las Vegas street, kidnapping her, and robbing her of her purse. In that case, Irive was convicted on August 31, 2010, after a jury trial in in Nevada's Eighth Judicial District Court, in Clark County, of first degree kidnapping, conspiracy to commit robbery and robbery. (See Judgment of Conviction, Exh. 25 (ECF No. 16-8).) Irive was sentenced to life in prison with the possibility of parole after five years for the kidnapping; for the conspiracy to commit robbery, he was sentenced to two to six years in prison; for the robbery, he was sentenced to sixteen months to fifteen years in prison; the sentences are to be served /// concurrently with one another, and concurrently with his sentences in any other cases. See id.

         Irive appealed, and the Nevada Supreme Court affirmed on December 27, 2011. (See Order of Affirmance, Exh. 31 (ECF No.16-14).)

         Irive filed a petition for writ of habeas corpus in the state district court on August 8, 2012. (See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 36 (ECF No. 16-19).) The state district court denied the petition on December 31, 2012. (See Findings of Fact, Conclusions of Law and Order, Exh. 43 (ECF No. 17-2).) Irive appealed, and the Nevada Supreme Court reversed and remanded on January 24, 2014, on account of the district court's failure to appoint counsel. (See Order of Reversal and Remand, Exh. 45 (ECF No. 17-4).) Back in the state district court, after appointment of counsel, Irive filed a supplemental memorandum of points and authorities in support of his petition. (See Supplemental Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 50 (ECF No. 17-9).) The state district court held an evidentiary hearing on November 7, 2014. (See Transcript of Evidentiary Hearing, November 7, 2014, Exh. 52 (ECF No. 17-11).) The state district court denied the petition on December 2, 2014. (See Findings of Fact, Conclusions of Law and Order, Exh. 54 (ECF No. 17-13).) Irive appealed again, and the Nevada Supreme Court affirmed on December 18, 2015. (See Order of Affirmance, Exh. 61 (ECF No. 17-20).)

         Irive initiated his federal habeas action regarding this conviction-No. 2:16-cv-00241-MMD-WGC-pro se, on February 5, 2016. After the Court appointed counsel, Irive filed a second amended petition for writ of habeas corpus, which is the operative petition, on August 30, 2016 (ECF No. 14). Irive asserts the following claims in his second amended petition:

1. Irive's kidnapping conviction is in violation of his federal constitutional rights because the State “produced insufficient evidence at trial to support the charge of kidnapping.” (Second Amended Petition (ECF No. 14) at 13.)
2. In violation of Irive's federal constitutional rights, “[t]he prosecutor shifted the burden of proof and commented on Irive's exercise of his right to remain silent.” (Id. at 15.)
3. Irive received ineffective assistance of counsel, in violation of his federal constitutional rights, “when his trial attorney failed to adequately represent him during the plea bargaining stage by allowing a plea negotiation offered by the district attorney to lapse.” (Id. at 18.)

         The respondents filed an answer, responding to all Irive's claims, on October 31, 2016 (ECF No. 21). Irive filed a reply on March 2, 2017 (ECF No. 27).

         III. DISCUSSION

         A. 28 U.S.C. § 2254(d)

         A federal court may not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, or was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding. 28 U.S.C. § 2254(d). A state-court ruling is “contrary to” clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is “an unreasonable application” of clearly established federal law under section 2254(d) if it correctly identifies the governing legal rule but unreasonably applies the rule to the facts of the particular case. See Williams v. Taylor, 529 U.S. 362, 407-08 (2000). To obtain federal habeas relief for such an “unreasonable application, ” however, a petitioner must show that the state court's application of Supreme Court precedent was “objectively unreasonable.” Id. at 409-10; see also Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Or, in other words, habeas relief is warranted, under the “unreasonable application” clause of section 2254(d), only if the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

         B. The Claim Common to Both Cases: The Plea Bargaining

         In both of his petitions, Irive claims that his trial counsel was ineffective because of her handling of plea bargaining with the prosecutor; specifically, Irive claims that the prosecutor made a favorable plea offer, encompassing both of Irive's cases, Irive's trial counsel advised him not to accept that offer, so that she could do further investigation, Irive rejected the offer, and then Irive's trial counsel let the offer expire, such that it was no longer available, and Irive had to face trial in both cases. (See ...


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