United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
has filed a second amended petition for writ of habeas
corpus. (ECF No. 23.) The Court has reviewed the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts. The Court will dismiss
two grounds for relief because they lack merit. Respondents
must file a response to the remaining grounds.
jury trial, the state district court convicted Petitioner of
one count each of robbery with the use of a deadly weapon,
discharging a firearm within or from a structure, grand
larceny of a motor vehicle, and assault with a deadly weapon.
(ECF No. 11-3.) Petitioner appealed, and the Nevada Supreme
Court affirmed. (ECF No. 11-11.)
6 and 7 are claims of ineffective assistance of counsel. In
ground 6, Petitioner claims that trial counsel did not move
to sever the trial on the charge of grand larceny of a motor
vehicle from the trial on the other charges. In ground 7,
Petitioner claims that trial counsel did not move for
dismissal of the counts of discharging a firearm and assault
with a deadly weapon because they were lesser-included
offenses of robbery with the use of a deadly weapon and thus
violated the Double Jeopardy Clause of the Fifth Amendment.
petitioner claiming ineffective assistance of counsel must
demonstrate (1) that the defense attorney's
representation “fell below an objective standard of
reasonableness, ” Strickland v. Washington,
466 U.S. 668, 688 (1984), and (2) that the attorney's
deficient performance prejudiced the defendant such that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different, ” id. at
694. “[T]here is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.”
Id. at 697.
cannot demonstrate prejudice for either ground 6 or for
ground 7. Ground 10 is a claim that the charge of grand
larceny of a motor vehicle was improperly joined to the other
charges. This is the claim that underlies ground 6. Ground 11
is a claim that the counts of assault with a deadly weapon
and discharging a firearm violate the Double Jeopardy Clause
because they are lesser-included offenses of robbery with the
use of a deadly weapon. This is the claim that underlies
ground 7. Petitioner acknowledges that he raised the claims
in grounds 10 and 11 on direct appeal and that the Nevada
Supreme Court denied the claims on their merits. (ECF No.
23.) The Nevada Supreme Court did in fact deny those claims
on their merits. (ECF No. 11-11 at 4-6.) Petitioner cannot
demonstrate a reasonable probability of a different outcome
had trial counsel raised these claims, because ultimately he
did raise them and the Nevada Supreme Court rejected them.
Consequently, the court will dismiss grounds 6 and 7.
before the Court are Petitioner's motion for discovery
(ECF No. 25), Respondents' opposition (ECF No. 27), and
Petitioner's reply (ECF No. 28). The Court agrees with
Respondents that this request is premature. The discovery
motion is related to grounds 1, 2, and 4. Ground 1 is a claim
that the prosecution withheld evidence that individuals
charged as co-conspirators with Petitioner received favorable
treatment in exchange for their testimonies, and also that
the prosecution elicited false testimonies or failed to
correct false testimonies about their treatment. Ground 4 is
a claim that trial counsel failed to impeach these
co-conspirators with evidence of their favorable treatment,
and that trial counsel did not ask for documents about the
co-conspirators' plea agreements. Ground 2 is a claim
that trial counsel failed to move to suppress evidence gained
from a warrantless search, because even though Petitioner was
on parole at the time, the parole officer was used as a
stalking horse for the police to obtain evidence of the
crimes charged. Petitioner acknowledges that he never has
presented ground 1 to the state courts. Ground 4, to the
extent that it incorporates facts from ground 1, might be
fundamentally different from the claim that Petitioner
presented to the state courts. Ground 2 also might be
fundamentally different from the claim that Petitioner
presented to the state courts, because, based upon the court
orders in his state post-conviction proceedings, Petitioner
appeared to argue in state court that counsel should have
moved to suppress evidence of the search because it resulted
from recorded jail telephone conversations. (See ECF
No. 11-15 at 7-9; ECF No. 11-20 at 3-4.) Other procedural
defenses might also apply to these three grounds. The court
anticipates Respondents filing a motion to dismiss. Under
these circumstances, the court will not grant the motion for
discovery at this time. The court will defer until it
determines what grounds survive. Petitioner may renew his
discovery motion then, if he feels it is
therefore ordered that Respondents will have forty-five (45)
days from the date of entry of this Order to answer or
otherwise respond to the amended petition (ECF No. 23).
Respondents must raise all potential affirmative defenses in
the initial responsive pleading, including lack of exhaustion
and procedural default. Successive motions to dismiss will
not be entertained.
further ordered that if Respondents file and serve an answer,
then they must comply with Rule 5 of the Rules Governing
Section 2254 Cases in the United States District Courts, and
then Petitioner will have forty-five (45) days from the date
on which the answer is served to file a reply.
further ordered that if Respondents file and serve a motion,
then Petitioner will have fourteen (14) days from the date of
service of the motion to file a response to the motion.
Respondents then will have seven (7) days from the date of
service of the response to file a reply.
further ordered that Petitioner's motion for discovery
(ECF No. 25) is denied without prejudice.
Accordingly, the Court does not address
Respondents' other ...