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Towe v. Director, NDOC

United States District Court, D. Nevada

July 31, 2018

MICHAEL LEE TOWE, Petitioner,
v.
DIRECTOR, NDOC, et al., Respondents.

          ORDER

          KENT J. DAWSON UNITED STATES DISTRICT JUDGE.

         This 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).

         Background

         Petitioner 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).[1]

         Petitioner 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. (Id.)

         A 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 § 176.0931.

         On May 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)).

         At 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).

         On 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.”[2] (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).

Standard

         28 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; 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.

         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 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.)

         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.” 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)).

         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.” 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).

         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.” Id. 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 ...

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