United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE.
counseled habeas matter comes before the Court for
consideration of the surviving claims of the first amended
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (ECF No. 25). Respondents have answered (ECF No.
70), and petitioner has replied (ECF No. 75).
in this action challenges his state court conviction,
pursuant to a guilty plea, of attempt lewdness with a minor
under the age of fourteen. (Exs. 15 & 17).
was initially charged with two acts of lewdness with a minor
under the age of 14. The charges arose out of allegations
made by C.N., the nine-year-old daughter of petitioner's
live-in girlfriend, in September 2004. (Ex. 2). At that time,
C.N. told her school guidance counselor that petitioner had
touched her vaginal area over her clothes and fondled her
chest under her shirt. (Id.) Interviewed a day later
by a CPS worker, C.N. stated that petitioner called her out
of her bedroom, started to kiss her, and said “Do you
love me?” to which C.N. replied “yes.”
(Id.) Then, petitioner pulled down C.N.'s shirt,
touched her breasts and touched over her clothing on her
vagina. (Id.) Petitioner was interviewed and
admitted to touching C.N. on her breasts and vagina over her
clothing while having a conversation with her about boys.
criminal complaint charging petitioner with two counts of
lewdness with a minor under the age of 14 was filed on March
3, 2005, and petitioner was arrested on April 11, 2005. (Exs.
3 & 5). On April 26, 2005, petitioner waived his
preliminary hearing and stated an intent to enter a plea of
guilty to a single reduced charge of attempt lewdness with a
minor. (Ex. 9). The parties agreed that if petitioner
received a “favorable” psycho-sexual evaluation
the State would not oppose probation, and if he completed
probation successfully he would be allowed to withdraw his
plea and plead to a lesser, gross misdemeanor with a sentence
of time served. (Id.) Pleading to the lesser gross
misdemeanor would have allowed petitioner to avoid lifetime
supervision pursuant to Nevada Revised Statutes §
3, 2005, petitioner appeared before the district court and
entered a plea of guilty to attempt lewdness. (Ex. 14).
Petitioner indicated that he understood that if he received a
favorable psycho-sexual evaluation that the State would not
oppose probation, and that if he completed probation
successfully he would be allowed to withdraw his plea and
plead to a lesser, gross misdemeanor with a sentence of time
served. (Id. (Tr. at 2-3)).
petitioner's sentencing on June 27, 2005, the State
represented that one psychosexual evaluation came back
moderate-to-low risk and the other came back moderate-to-high
risk. (Ex. 16 (Tr. 2)). The court opted to sentence
petitioner to a prison term of 24 to 60 months, concurrent to
another sentence he was set to receive the following day,
required petitioner to register as a sex offender, and
imposed lifetime supervision pursuant to § 176.0931.
(Id. at 5).
February 4, 2005, before charges were filed and petitioner
was arrested, C.N. was interviewed by a CPS officer. C.N.
told the officer that she had “lied about the abuse
because she wanted to get her mother and n[atural ]father
back together.” (Ex. 24). Another CPS report dated
March 4, 2005, noted that C.N. “had since recanted
[her] allegations.” (Id.) At some point, C.N.
claims, she told petitioner's trial counsel that she had
made up the allegations. (Ex. 49). A month after
petitioner's sentencing, C.N. signed a notarized
affidavit denying the allegations and admitting that she lied
in order to get petitioner out of the picture and her
biological parents back together. (Ex. 49). In 2009, she
signed a similar declaration. (Ex. 67). In her more recent
declaration, C.N. explained that petitioner had been telling
her which areas of her body boys shouldn't touch, and did
so by touching her neckline, non-sexually, and hovering his
hand over her vagina. (Ex. 67).
U.S.C. § 2254(d) provides the legal standards for this
Court's consideration of the merits of the claims that
have been previously decided by or presented to the
state's highest 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.
“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
fairminded 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.”
Andrade, 538 U.S. 63 (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell
v. Cone, 535 U.S. 685, 694 (2002)).
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.”
Andrade, 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.”
Id. at 973. Rather, AEDPA requires substantially
.... [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 ...