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Peters v. Neven

United States District Court, D. Nevada

July 18, 2018

WILSON O. PETERS, Petitioner,
DWIGHT NEVEN, et al., Respondents.



         Wilson O. Peters' counseled, first-amended 28 U.S.C. § 2254 habeas corpus petition comes before the court for adjudication on the merits (ECF No. 8).

         I. Procedural History and Background

         On May 26, 2010, a jury convicted Peters of count 1: battery with use of a deadly weapon and count 2: assault with a deadly weapon (exhibit 15 to first-amended petition, ECF No. 8).[1] The state district court sentenced Peters as a habitual criminal to a term of ten years to life on each count, to run concurrently. Exh. 17. Judgment of conviction was filed on October 20, 2010. Exh. 18.

         Peters timely appealed; on February 24, 2012, the Nevada Supreme Court affirmed the convictions, and remittitur issued on March 20, 2012. Exhs. 20, 23, 24.

         Peters filed a proper person motion for appointment of counsel on July 11, 2012, and the state district court appointed counsel for state post-conviction proceedings. Exh. 25. Peters filed a counseled state postconviction petition for a writ of habeas corpus on December 22, 2012. Exh. 26. On May 12, 2014, the Nevada Supreme Court affirmed the denial of the petition, and remittitur issued on June 9, 2014. Exhs. 36, 37.

         On February 29, 2016, this court granted respondents' motion to dismiss in part, dismissing the state-law claim of redundant convictions in ground 1 (ECF No. 34). Respondents have now answered the claims remaining before the court (ECF No. 37), and Peters replied (ECF No. 44).

         II. AEDPA Standard of Review

         28 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; 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.

         The 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).

         A state 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.

         A state 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).

         To the 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 deference:

.... [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.

         Under 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.

         III. Instant Petition

         Ground 1

         The remaining claim in ground 1 is that Peters' sentence violates the Fifth Amendment's protection against double jeopardy (ECF No. 8, pp. 11-14). He argues that he was convicted of both assault and battery for stabbing Stewart Gibson with a small kitchen knife based on a) the actual stabbing, and b) placing Gibson in a state of reasonable apprehension of immediate bodily harm just prior to stabbing him.

         The Fifth Amendment's Double Jeopardy Clause prohibits multiple punishments for the same offense. U.S. Const. amend. V. To determine whether two offenses are the “same” for double jeopardy purposes, a court must consider “whether each offense contains an element not contained in the other; if not, they are the ‘same offense' and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). “Conversely, ‘[d]ouble jeopardy is not implicated so long as each violation requires proof of an element which the other does not.'” Wilson v. Belleque, 554 F.3d 816, 829 (9th Cir. 2009) (quoting United States v. Vargas-Castillo, 329 F.3d 715, 720 (9th Cir. 2003). “‘If each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.'” Id. (quoting Iannelli v. United States, 420 U.S. 770, 785-86 n.17 (1975). the “same act or transaction” can “constitute a violation of two distinct statutory provisions.” Blockburger, 284 U.S. at 304.

         Gibson testified at trial that Peters lunged at him, attempted several times to stab him, stabbed him above his hip and cut his forearm as he tried to block the attack, and that he was able to avoid Peters' ...

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