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Giarmo v. State

United States District Court, D. Nevada

July 2, 2018

ANGEL GIARMO, Petitioner,
v.
THE STATE OF NEVADA, Respondent.

          ORDER

          ROBERT C. JONES United States District Judge

         Before 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.

         In the 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) years.

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).

         Petitioner 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).

         Petitioner 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.

         Congress 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; or
(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, § 2254(d)(2).

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 ...


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