United States District Court, D. Nevada
WILSON O. PETERS, Petitioner,
DWIGHT NEVEN, et al., Respondents.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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).
Procedural History and Background
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.
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.
timely appealed; on February 24, 2012, the Nevada Supreme
Court affirmed the convictions, and remittitur issued on
March 20, 2012. Exhs. 20, 23, 24.
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.
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).
AEDPA Standard of Review
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.
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
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.
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' ...