United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE
pro se 28 U.S.C. § 2254 habeas petition filed by Brandon
Christopher Ragland is before me for final disposition on the
Procedural History and Background
forth in my order on the respondents' motion to dismiss,
on April 30, 2013, a jury convicted Ragland of possession of
a firearm by an ex-felon. Exhibit 35. The state district court
adjudicated Ragland a habitual criminal under the small
habitual criminal statute and sentenced him to 60-150 months,
with 182 days credit for time served. Exh. 42. The judgment
of conviction was filed on November 12, 2013. Id.
The Supreme Court of Nevada affirmed Ragland's conviction
on April 10, 2014, and remittitur issued on May 5, 2014.
Exhs. 48, 49.
12, 2014, Ragland filed a proper person state postconviction
habeas corpus petition. Exhs. 50, 54. The state district
court denied the petition on September 22, 2014. Exh. 56. The
Nevada Court of Appeals affirmed the denial of the petition
on February 4, 2015. Nevada Court of Appeals No. 66646.
Remittitur issued on October 14, 2015. Exh. 68. On October
28, 2015, Ragland dispatched his federal habeas petition for
filing. ECF No. 6.
legal standards for my consideration of the petition are set
forth in 28 U.S.C. § 2254(d), a provision of the
Antiterrorism and Effective Death Penalty Act (AEDPA).
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.
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). My ability to grant a writ is limited to
cases where “there is no possibility fair-minded
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.”
Lockyer, 538 U.S. at 73 (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.”
Lockyer, 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.”
393 F.3d at 973. Rather, AEDPA requires substantially more
[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. Cullen, 563 U.S. at 181.
Ineffective Assistance of Counsel
claims of ineffective assistance (IAC) of trial counsel
remain in this case. IAC claims are governed by the two-part
test announced in Strickland v. Washington, 466 U.S.
668 (1984). In Strickland, the Supreme Court held
that a petitioner claiming IAC has the burden of
demonstrating that (1) the attorney made errors so serious
that he or she was not functioning as the
“counsel” guaranteed by the Sixth Amendment, and
(2) that the deficient performance prejudiced the defense.
Williams, 529 U.S. at 390-91 (citing
Strickland, 466 U.S. at 687). To establish
ineffectiveness, the defendant must show that counsel's
representation fell below an objective standard of
reasonableness. To establish prejudice, the defendant must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is “probability sufficient to undermine
confidence in the outcome.” Id. Additionally,
any review of the attorney's performance must be
“highly deferential” and must adopt counsel's
perspective at the time of the challenged conduct, in order
to avoid the distorting effects of hindsight.
Strickland, 466 U.S. at 689. It is the
petitioner's burden to overcome the presumption that
counsel's actions might be considered sound trial
under Strickland requires a showing of deficient
performance of counsel resulting in prejudice, “with
performance being measured against an objective standard of
reasonableness, . . . under prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380
(2005) (internal quotations and citations omitted). When the
IAC claim is based on a challenge to a guilty plea, the
Strickland prejudice prong requires a petitioner to
demonstrate “that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
state court has already rejected an IAC claim, a federal
habeas court may only grant relief if that decision was
contrary to, or an unreasonable application of, the
Strickland standard. See Yarborough v.
Gentry, 540 U.S. 1, 5 (2003). There is a strong
presumption that ...