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Kelly v. Filson

United States District Court, D. Nevada

March 19, 2019

JOSEPH KELLY, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This pro se habeas petition comes before the Court for consideration on the merits (ECF No. 6). Respondents have answered (ECF No. 40), and Petitioner has replied (ECF No. 44). For the reasons discussed herein, the Court denies the petition.

         II. RELEVANT BACKGROUND

         Petitioner Joseph Kelly challenges his 2010 state court conviction, pursuant to a guilty plea, of two counts of robbery with use of a deadly weapon and one count of attempted robbery with use of a deadly weapon. (ECF No. 6 at 2, 18-19.) The charges arose after Petitioner allegedly robbed or burglarized several businesses, in many cases using an airsoft gun. (See Id. at 8.) Petitioner was initially charged with four counts of burglary, two counts of robbery with use of a deadly weapon, and two counts of attempted robbery with use of a deadly weapon. (Exh. 2 (ECF No. 9-2).)[1]

         Petitioner entered a plea of guilty to three counts-two counts of robbery with use of a deadly weapon and one count of attempted robbery with use of a deadly weapon. (Exh. 11 (ECF No. 9-11) at 3-4; Exh. 12 (ECF No. 9-12).) Pursuant to the plea agreement, the remaining five counts were dismissed. (Exh. 11 (ECF No. 9-11) at 5; Exh. 15 (ECF No. 9-15) at 27.)

         A presentence investigation (“PSI”) report was prepared, which indicated that Petitioner had four prior felonies, including one for assault. (Exh. 13 (ECF No. 9-13).) At sentencing, Petitioner's counsel stated that he had reviewed the PSI with Petitioner and that there were no inaccuracies. (Exh. 15 (ECF No. 9-15) at 3).) Later, however, counsel advised the court that the assault conviction was not a felony, only a misdemeanor, and that Petitioner therefore had only three prior felonies. (Id. at 19.) The court ordered the Division of Parole and Probation to look into it and correct the PSI if the conviction was indeed not a felony. (Id. at 20.) The trial court eventually sentenced Petitioner to consecutive terms of 28 to 70 months on each of the charges, with consecutive terms of 12 to 30 months for the deadly weapon enhancements. (Exh. 16 (ECF No. 9-16).) In setting forth the factors underlying its determination, the court noted Petitioner's criminal history, which it described as “replete with crimes of theft.” (Id. at 25.)

         Petitioner appealed his sentence, and the Nevada Supreme Court affirmed. (Exhs. 18, 27, 32 (ECF Nos. 9-18, 10-4, 10-9).)

         Petitioner filed a postconviction petition for habeas relief in state court. (Exhs. 37, 44 (ECF Nos. 10-14, 10-21).) The district court dismissed all but one claim and held an evidentiary hearing on the remaining claim-that trial counsel was ineffective for failing to investigate whether the airsoft gun was a deadly weapon. (Exhs. 52, 57 (ECF Nos. 11-6, 11-11).) The trial court ruled in Petitioner's favor on that claim, after concluding that although the airsoft gun was in fact a deadly weapon, trial counsel performed deficiently when he failed to conduct a reasonable investigation into its capabilities. (Exh. 58 (ECF No. 11-12) at 4-6.) The Nevada Supreme Court reversed, however, holding that Petitioner could not demonstrate prejudice because he had not demonstrated that, had counsel conducted further investigations, he would have opted not to plead guilty. (Exh. 77 (ECF No. 12-11).)

         Petitioner thereafter filed the instant federal habeas petition. /// ///

         III. LEGAL STANDARD

         28 U.S.C. § 2254(d) provides the legal standards for this Court's consideration of the merits 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 Anti-Terrorism and Effective Death Penalty Act of 1996 (“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, 693-94 (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] ...


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