United States District Court, D. Nevada
P. GORDON, UNITED STATES DISTRICT JUDGE
pro se 28 U.S.C. § 2254 habeas petition by
Maurice Daniel James Talley is before the court for
adjudication on the merits (ECF No. 1).
Background & Procedural History
November 21, 2013, Talley pleaded guilty to attempted murder
with use of a deadly weapon (exhibit 11). His attorneys had
negotiated a global resolution of Talley's four felony
criminal cases; as a result, the State dismissed 40 felony
charges.In this case (no. C287805), the state
district court sentenced him to 96 to 240 months, with a
consecutive term of 96 to 240 months for the deadly weapon
enhancement, with 355 days' credit for time served. Exh.
16. The court entered the judgment of conviction on January
24, 2014. Id.
did not file a direct appeal. On December 18, 2015, the
Nevada Court of Appeals affirmed the denial of Talley's
state postconviction habeas corpus petition, and, after
denying a motion for rehearing, remittitur issued on April 7,
2016. Exhs. 52, 59, 60.
about April 20, 2016, Talley dispatched his federal habeas
petition for mailing (ECF No. 1). Respondents have now
answered the petition, and Talley replied (ECF Nos. 52, 55).
Antiterrorism and Effective Death Penalty Act
U.S.C. § 2254(d), a provision of the Antiterrorism and
Effective Death Penalty Act (AEDPA), provides the legal
standards for this court's consideration of the petition
in this case:
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.”
Lockyer, 538 U.S. at 73 (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000), and citing
Bell, 535 U.S. at 694.
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.”
Lockyer, 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
the state court finding was “clearly erroneous.”
393 F.3d at 973. Rather, AEDPA requires substantially more
.... [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
convincing evidence. The petitioner bears the burden of
proving by a preponderance of the evidence that he is
entitled to habeas relief. Cullen, 563 U.S. at 181.
Finally, in conducting an AEDPA analysis, this court looks to
the last reasoned state-court decision. Murray v.
Schriro, 745 F.3d 984, 996 (9th Cir. 2014).
Ineffective Assistance of Counsel
assistance of counsel claims are governed by the two-part
test announced in Strickland v. Washington, 466 U.S.
668 (1984). In Strickland, the Supreme Court held
that a petitioner claiming ineffective assistance of counsel
has the burden of demonstrating that (1) the attorney made
errors so serious that he or she was not functioning as the
“counsel” guaranteed by the Sixth Amendment, and
(2) that the deficient performance prejudiced the defense.
Williams, 529 U.S. at 390-91 (citing
Strickland, 466 U.S. at 687). To establish
ineffectiveness, the defendant must show that counsel's
representation fell below an objective standard of
reasonableness. Id. To establish prejudice, the
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Id. A
reasonable probability is “probability sufficient to
undermine confidence in the outcome.” Id.
Additionally, any review of the attorney's performance
must be “highly deferential” and must adopt
counsel's perspective at the time of the challenged
conduct, in order to avoid the distorting effects of
hindsight. Strickland, 466 U.S. at 689. It is the
petitioner's burden to overcome the presumption that
counsel's actions might be considered sound trial
assistance of counsel under Strickland requires a
showing of deficient performance of counsel resulting in
prejudice, “with performance being measured against an
objective standard of reasonableness, . . . under prevailing
professional norms.” Rompilla v. Beard, 545
U.S. 374, 380 (2005) (internal quotations and citations
omitted). When the ineffective assistance of counsel claim is
based on a challenge to a guilty plea, the
Strickland prejudice prong requires a petitioner to
demonstrate “that there is a reasonable probability