United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
pro se habeas matter comes before the Court for
consideration of the merits of the petition (ECF No.
For the reasons explained below, the Court will deny the
Eric Nees challenges his 2006 state court conviction,
pursuant to a jury trial, of aiding and abetting the
commission of robbery with the use of a deadly weapon, in
connection with the robbery of Herman Buehler on April 20,
2006. (ECF No. 45 at 1 (Exhibit “Exh.”
weeks prior to the date in question, Buehler met Petitioner
and began to occasionally purchase methamphetamine from him.
(Exh. 33A (Tr. 27, 29).) Petitioner would come to
Buehler's house for the transactions, often with someone
else, but the other person always stayed in the car, which
was typical of Buehler's experience with drug
transactions. (Id. at 30, 35-36.) About a week
before the incident, Petitioner asked Buehler for an eighth
of an ounce from the drugs he had just sold Buehler,
promising to return immediately with the money to pay him
back. (Id. at 37.) Buehler gave Petitioner the
eighth, but Petitioner never returned. (Id. at
April 20, 2006, Buehler was outside waxing his car when
Petitioner walked up and apologized. (Id. at 36.)
Petitioner said he would give Buehler an extra eighth if
Buehler would buy more methamphetamine; he did not offer to
pay Buehler back. (Id. at 38-39.) Buehler did not
really want to make another purchase but agreed to do so to
get his money back. (Id. at 39.) Petitioner asked
Buehler how much money he had, and Buehler, who “felt
something was up, ” said he did not have much because
he had just made a purchase. (Id. at 39-40.) After
they went into the house, Petitioner said he was going to get
his partner from the car while Buehler got his scale.
(Id. at 40-41.) Buehler said he didn't like
Petitioner bringing people along but to go ahead.
(Id. at 41.)
set up his scale and waited, and two to three minutes later
Petitioner returned with two men Buehler had never seen
before. (Id. at 42-44.) One of the men walked toward
the back of the house; Buehler asked everyone to stay in the
kitchen, but the men ignored him. (Exh. 33B (Tr. 45).) As the
man who'd gone to the back finished looking around, the
other man pulled out a gun and told Buehler to lay on the
floor. (Id. at 46.) The gunman spoke angrily and
appeared high or crazy. (Exh. 33C (Tr. 95).) Buehler did as
directed. (Exh. 33B (Tr. 47).) Buehler looked at Petitioner
and Petitioner's face was “like business,
normal.” (Id.) The gunman stepped over Buehler
to rifle through Buehler's things. (Id. at
48-49.) He then told Petitioner to get Buehler's wallet.
(Id. at 49.) As Petitioner bent down to get
Buehler's wallet, Buehler looked at Petitioner with a
look of disgust, but there was no particular expression on
Petitioner's face, “just business.”
(Id. at 49-50.) The gunman asked Buehler if there
were any more money or drugs, then said, “let's go,
” and the three men left. (Id. at 50.)
the men left, Buehler called his neighbor Faith Martin.
(Id. at 131-33; Exh. 33B (Tr. 58).) Seconds before
Buehler called, Faith had seen a silver car speeding down the
alley with a man's legs and feet hanging out the
driver's side door, the door open. (Exh. 33C (Tr.
127-30).) At Faith's urging, Buehler called the police
(Exh. 33C (Tr. 134); Exh. 33B (Tr. 62).)
was arrested and charged with conspiracy to commit armed
robbery and aiding and abetting the commission of an armed
robbery. (Exh. 4.) At Petitioner's trial, defense counsel
argued that there was no evidence that Petitioner
participated in the robbery, that Petitioner was just as
surprised as Buehler was when the gunman pulled out the gun,
and that it was the gunman giving orders. (Exh. 33A (Tr.
17-20).) Counsel argued that Petitioner was acting under
duress of the crazy, angry, meth-addled gunman. (Exh. 34 (Tr.
52-54).) She asserted that although Buehler had portrayed
Petitioner as unfazed by the gun and direction to rob
Buehler, Buehler's assessment of Petitioner's
demeanor was not credible and could not be believed.
(Id. at 43-46.)
jury ultimately found Petitioner guilty of aiding and
abetting robbery with use of a deadly weapon but not guilty
of conspiracy to commit armed robbery. (Exh. 37.) Petitioner
was sentenced, judgment of conviction entered, and an appeal
filed. (Exhs. 42-44.) The Nevada Supreme Court affirmed
Petitioner's judgment and sentence. (Exh. 59.)
thereafter pursued two postconviction petitions for habeas
relief in state court. (Exhs. 65, 92, 96, 100, 116.) His
amended federal habeas petition now comes before the Court
for consideration on the merits.
U.S.C. § 2254(d) provides the legal standards for this
Court's consideration of the merits of the petition in
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, 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.”
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 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.
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. See Cullen, 563 U.S. at
181. The state courts' decisions on the merits are
entitled to deference under AEDPA and may not be disturbed
unless they were ones “with which no fairminded jurist
could agree.” Davis v. Ayala, -- U.S. --, 135
S.Ct. 2187, 2208 (2015).
amended petition, which is the operative petition in this
case, Petitioner asserts three grounds for relief: (1) trial
counsel was ineffective for advising him not to testify; (2)
trial counsel did not confer with Petitioner about his theory
of defense, file pretrial motions on his behalf, or advise
the trial court that a conflict existed and Petitioner wanted
new counsel; and (3) insufficient evidence supported his
conviction for aiding and abetting armed robbery with use of
a deadly weapon. (ECF No. 45.) Several portions of
Petitioner's claims have been abandoned by Petitioner
after they were deemed unexhausted, so this order addresses
only the surviving claims.
Ground 1, Petitioner asserts that trial counsel was
ineffective for advising him against, and barring him from,
testifying. (ECF No. 45 at 3.) Petitioner asserts that
testimony as to his state of mind was necessary to support
his claim of duress and that without his testimony, the
defense was an “empty shell.” (Id. at 4;
ECF No. 91 at 7.) The trial court rejected Petitioner's
claim as follows:
The defense strategy of trying to keep out criminal history
was reasonable in light of the fact that Nees had a total of
22 convictions between the years 1990-2005, seven of which
were felonies. Of these convictions, one was a felony
conviction for Burglary, one was a gross misdemeanor
conviction for Conspiracy to Commit Grand Larceny and Nees
had three misdemeanor convictions for Petit Larceny/Theft.
The other convictions involved drugs, child abuse, Contempt
and Conspiracy to Commit the Crime of Cheating at Gambling.
The record also indicates that trial counsel sufficiently
advised Nee[s] of his options. In a letter dated September 5,
2006, trial counsel wrote, “In deciding whether or not
to testify, you will need to weigh the pros and cons. By
testifying, you ensure the jury will hear your side of the