United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
habeas corpus action, brought by Petitioner Vallier William
Tompkins, is before the Court for resolution of the claims
remaining in Tompkins's second amended habeas petition.
The Court will deny Tompkins's habeas petition, will deny
him a certificate of appealability, and will direct the Clerk
of the Court to enter judgment accordingly.
3, 2012, Tompkins was charged by complaint in a Reno justice
court with three counts of sexual assault, one count of
battery with intent to commit sexual assault, and one count
of burglary. (Criminal Complaint, Ex. 15 (ECF No. 22-15).)
The justice court ordered a competency evaluation. (Order for
Competency Evaluations, Ex. 16 (ECF No. 22-16).) Two
competency evaluation reports concluded that Tompkins was
competent to stand trial, and the state district court made a
finding to that effect. (Competency Evaluation, Ex. 17 (ECF
No. 22-17); Competency Evaluation, Ex. 19 (ECF No. 22-19);
Order of Competency and Returning Matter to Justice Court,
Ex. 21 (ECF No. 22-21).) Tompkins waived the preliminary
hearing. (Waiver of Preliminary Examination, Ex. 24 (ECF No.
22-24).) On September 13, 2012, the State charged Tompkins by
information with three counts of sexual assault.
(Information, Ex. 23 (ECF No. 22-23).)
was arraigned on September 20, 2012, and he pled guilty to
each of the three sexual assault charges. (Transcript of
Arraignment, Ex. 25 (ECF No. 22-25); see also Guilty
Plea Memorandum, Ex. 26 (ECF No. 22-26).) On October 25,
2012, the court sentenced Tompkins to three consecutive terms
of ten years to life in prison (with the first term running
concurrent with a sentence imposed in a separate case).
(Transcript of Sentencing, Ex. 30 (ECF No. 23-4).) The
judgment of conviction was filed on October 30, 2012.
(Judgment, Ex. 31 (ECF No. 23-5).) Tompkins did not appeal
from the judgment of conviction.
11, 2013, Tompkins filed a petition for writ of habeas corpus
in the state district court. (Petition for Writ of Habeas
Corpus, Ex. 39 (ECF No. 23-13).) The court appointed counsel
for Tompkins. (See Order Granting in Forma
Pauperis and Appointment of Counsel, Ex. 41 (ECF No.
23-15); Recommendation and Order for Appointment of Counsel,
Ex. 42 (ECF No. 23-16).) On May 27, 2015, the state district
court granted the State's motion to dismiss, and
dismissed the petition, determining that the record showed
each of Tompkins' claims to be meritless. (Order
Dismissing Petition for Writ of Habeas Corpus, Ex. 63 (ECF
No. 24-19).) Tompkins appealed, and the Nevada Court of
Appeals affirmed on February 17, 2016. (Order of Affirmance,
Ex. 77 (ECF No. 24-33).) The remittitur issued on March 15,
2016. (See Remittitur, Ex. 78 (ECF No. 24-34).)
Court received a pro se petition for writ of habeas
corpus from Tompkins, initiating this action, on July 26,
2016 (ECF No. 4). The Court appointed counsel, and, with
counsel, Tompkins filed a first amended habeas petition on
August 3, 2016. (Order entered July 27, 2016 (ECF No. 3);
First Amended Petition for Writ of Habeas Corpus (ECF No.
19, 2017, Tompkins filed a second amended petition for writ
of habeas corpus-now his operative petition-asserting the
Ground 1: “Tompkins' guilty plea was not entered
into knowingly, intelligently, or voluntarily, ” in
violation of his federal constitutional rights.
Ground 2: “Tompkins was denied his right to the
effective assistance of counsel, ” in violation of his
federal constitutional rights.
Ground 2(1): “Trial counsel failed to advise Tompkins
of his right to appeal.” Ground 2(2): “Trial
counsel failed to adequately investigate.” Ground 2(3):
“Trial counsel failed to explain the nature and
consequences of the guilty plea to Tompkins.” Ground
2(4): “Trial counsel had a conflict of interest in
representing Tompkins.” Ground 2(5): “Trial
counsel failed to object to highly prejudicial victim impact
evidence.” Ground 3: “Improper victim impact
evidence was admitted against Tompkins at his sentencing
hearing, ” in violation of his federal constitutional
Ground 4: “The cumulative effect of the errors in this
case deprived Tompkins of his right to due process, ”
in violation of his federal constitutional rights.
(Second Amended Petition for Writ of Habeas Corpus (ECF No.
August 18, 2017, Respondents filed a motion to dismiss (ECF
No. 30). Tompkins filed an opposition to the motion to
dismiss on November 8, 2017 (ECF No. 36). On November 21,
2017, Tompkins filed a declaration (ECF No. 39) stating that
he abandons Ground 2(2) of his second amended petition-his
claim that his trial counsel was ineffective for not properly
investigating the case. Respondents filed a reply in support
of the motion to dismiss on December 15, 2017 (ECF No. 40).
The Court ruled on the motion to dismiss on March 8, 2018
(ECF No. 41). The Court dismissed Ground 2(2). With respect
to the part of Ground 1 found to be unexhausted-all of Ground
1 except Tompkins's claims that that his plea was not
knowing, intelligent, and voluntary because the trial court
did not advise him of his right to appeal or the possibility
of a plea under North Carolina v. Alford, 400 U.S.
25 (1970)-the Court required Tompkins to file either a notice
stating that he abandons the unexhausted claims or a motion
for a stay while he exhausts the claims in state court. In
all other respects, the Court denied the motion to dismiss.
April 30, 2018, Tompkins filed a notice stating that he
abandons the unexhausted portion of Ground 1 (ECF Nos.44,
August 9, 2018, Respondents filed an answer (ECF No. 48),
responding to Tompkins's remaining claims. On November
19, 2018, Tompkins filed a reply to the answer (ECF No. 51).
Standard of Review
U.S.C. § 2254(d) sets forth the standard of review
generally applicable in habeas corpus cases under the
Antiterrorism and ...