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Hirsch v. Neven

United States District Court, D. Nevada

September 4, 2019

KFIR HIRSCH, fka CODY CORY LEAVITT, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

         Before the court for a decision on the merits is a petition for a writ of habeas corpus filed by Kfir Hirsch. ECF No. 54. For reasons that follow, the petition will be denied.

         I. PROCEDURAL BACKGROUND[1]

         In March 2007, the State of Nevada filed a criminal complaint against petitioner charging him with battery with the use of a deadly weapon, first degree kidnapping, sexual assault on a minor under fourteen years of age, and lewdness with a child under the age of fourteen. After a preliminary hearing, the State filed, in the Eighth Judicial District Court for Nevada, an information with the same crimes alleged in the criminal complaint.

         In October 2008, the State filed an amended information against petitioner, charging him with one count of child abuse and neglect with substantial bodily harm. Also on that day, a guilty plea agreement was filed, in which petitioner agreed to enter a guilty plea to the lone count in the amended information.

         In January 2009, petitioner was sentenced to 60-180 months in the Nevada Department of Corrections, with 35 days credit for time served, and ordered to pay $45, 757.31 in restitution. The judgment of conviction was filed on January 29, 2009.

         In January 2010, petitioner filed a counseled post-conviction habeas petition in the state district court. A few days later, he filed a counseled motion to withdraw his guilty plea. The court held an evidentiary hearing in May 2010. Shortly thereafter, the court denied petitioner's motion to withdraw guilty plea and, on July 29, 2010, the court filed findings of fact and conclusions of law denying the post-conviction habeas petition. The state district court ruled that petitioner received effective assistance of counsel and that petitioner freely, voluntarily, and knowingly entered his guilty plea. Petitioner appealed both decisions.

         In November 2011, the Nevada Supreme Court filed an order to show cause why the appeal should not be dismissed for lack of jurisdiction because the findings of fact, conclusions of law, and order of July 29, 2010, did not resolve all of the claims raised in the petition. In January 2012, the Nevada Supreme Court entered an order finding, upon further review, that the district court's order resolved all claims for relief sought, and that it had jurisdiction to hear the appeal from the denial of the habeas petition and the motion to withdraw guilty plea. In March 2012, the Nevada Supreme Court filed an order affirming the denial of the post-conviction habeas petition and motion to withdraw guilty plea.

         Petitioner initiated this proceeding on May 14, 2012. In July 2012, this court granted petitioner's motion for the appointment of counsel. When the Federal Public Defender for Nevada filed a notice of conflict preventing that office from representing petitioner, the court appointed CJA panel attorney Todd M. Leventhal to represent petitioner in this action. Petitioner filed an amended petition in October 2013, which was subsequently re-filed in March 2014 in redacted form.

         In March 2014, respondents moved to dismiss the amended petition. This court granted the motion in part, finding petitioner had exhausted only two claims - Claim Five and a portion of Claim Seven. The court also dismissed Claim 2 for failing to state a cognizable federal claim. Petitioner was granted a stay in October 2015 to allow him to exhaust his unexhausted claims in state court. While the stay was pending, Leventhal was permitted to withdraw as counsel.

         After the stay was lifted, this court determined that petitioner had failed to properly present his unexhausted claims to the state court and ultimately dismissed them as procedurally defaulted. The court now addresses petitioner's remaining claims - Claim Five and a portion of Claim Seven - on the merits.

         II. STANDARDS OF REVIEW

         This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:

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.

         A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.

         The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 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] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004), overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9thCir. 2014).; see also Miller-El, 537 U.S. at 340 ("[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual ...


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