United States District Court, D. Nevada
C. JONES United States District Judge
the court are the petition for a writ of habeas corpus (ECF
No. 9) and respondent's answer (ECF No. 24). The court
finds that petitioner is not entitled to relief, and the
court denies the petition.
state district court, petitioner agreed to plead guilty to
one count of burglary. The remaining ground of the petition
concerns the provisions of habitual-criminal adjudication.
The prosecution agreed not to seek habitual-criminal
adjudication, with two conditions. Ex. 12, at 1 (ECF No.
13-12, at 2). First, if petitioner was released from custody
and then failed to appear at the sentencing hearing, then
petitioner agreed to be adjudicated as a habitual criminal
and sentenced to prison for a maximum term of 20 years and a
minimum term of 8 years. Id. Second, petitioner
needed to stay out of trouble. The agreement provided:
I understand and agree that, if I fail to interview with the
Department of Parole and Probation, fail to appear at any
subsequent hearings in this case, or an independent
magistrate, by affidavit review, confirms probable cause
against me for new criminal charges including reckless
driving or DUI, but excluding minor traffic violations, that
the State will have the unqualified right to argue for any
legal sentence and term of confinement allowable for the
crime(s) to which I am pleading guilty, including the use of
any prior convictions I may have to increase my sentence as
an habitual criminal to FIVE (5) to TWENTY (20) years, life
without the possibility of parole, life with the possibility
of parole after TEN (10) years, or a definite TWENTY-FIVE
(25) year term with the possibility of parole after TEN (10)
Ex. 12, at 2 (ECF No. 13-12, at 3). While petitioner awaited
sentencing in jail, she was charged with battery by a
prisoner, and a magistrate found probable cause. Ex. 26, at
2-3 (ECF No. 14, at 3-4). The prosecution filed a notice of
intent to seek punishment as a habitual criminal. The notice
listed 12 prior crimes. Ex. 27 (ECF No. 14-1). At the
sentencing hearing, the prosecution noted that the battery by
a prisoner case was dismissed because the victim did not
appear at the preliminary hearing. Nonetheless, the
prosecution wanted to argue habitual-criminal adjudication
because the magistrate's finding of probable cause
satisfied the above-quoted provision of the plea agreement.
The court agreed. Ex. 31, at 5 (ECF No. 14-5, at 6). The
judge determined that petitioner was a habitual criminal and
sentenced her to life imprisonment with eligibility of parole
starting after 10 years. Ex. 32 (ECF No. 14-6).
appealed, filed a motion to modify sentence, and filed a
post-conviction habeas corpus petition. All were
unsuccessful. See Ex. 76 (ECF No. 16), Ex. 82 (ECF
No. 16-6), Ex. 104 (ECF No. 17-3).
then commenced this action. The petition (ECF No. 9)
originally contained six numbered grounds. The court
determined that grounds 1, 2, 3, 5, and 6 were not exhausted.
Petitioner dismissed those grounds. Reasonable jurists would
not find the court's procedural ruling on grounds 1, 2,
3, 5, and 6 to be debatable or wrong, and the court will not
issue a certificate of appealability for those grounds.
has limited the circumstances in which a federal court can
grant relief to a petitioner who is in custody pursuant to a
judgment of conviction of a state court.
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.
28 U.S.C. § 2254(d). “By its terms § 2254(d)
bars relitigation of any claim ‘adjudicated on the
merits' in state court, subject only to the exceptions in
§§ 2254(d)(1) and (d)(2).” Harrington v.
Richter, 562 U.S. 86, 98 (2011).
Federal habeas relief may not be granted for claims subject
to § 2254(d) unless it is shown that the earlier state
court's decision “was contrary to” federal
law then clearly established in the holdings of this Court,
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362,
412 (2000); or that it “involved an unreasonable
application of” such law, § 2254(d)(1); or that it
“was based on an unreasonable determination of the
facts” in light of the record before the state court,
Richter, 562 U.S. at 100. “For purposes of
§ 2254(d)(1), ‘an unreasonable application of
federal law is different from an incorrect application of
federal law.'” Id. (citation omitted).
“A state court's determination that a claim lacks
merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on ...