United States District Court, D. Nevada
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.
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
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
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.
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
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
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.
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.
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
STANDARDS OF REVIEW
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;
(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.
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.
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
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