Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Orth v. Warden HDSP

United States District Court, D. Nevada

December 26, 2019

SEAN RODNEY ORTH, Petitioner,
v.
WARDEN HDSP, et al., Respondents.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and filed by Petitioner Sean Rodney Orth is before the Court for adjudication of the merits of Petitioner's remaining claims. As further explained below, the Court denies Petitioner's habeas petition, grants him a certificate of appealability for Grounds Three and Ten, and directs the Clerk of the Court to enter judgment accordingly.

         II. BACKGROUND

         In a previous order, dated December 12, 2017, this Court described the crime, as revealed by the evidence at Petitioner's trial, as follows:

The convictions arose out of Petitioner's arrest on the night of August 21, 2006, during which police officers conducted a search of the rental vehicle he was driving. During the search, officers located two loaded handguns in a duffel bag, a baggie of methamphetamine, and several empty baggies consistent with packaging used in the sale of narcotics.
Present during the arrest was Marla Barker, petitioner's girlfriend. Although Barker was subject to an outstanding warrant for failure to appear, officers did not arrest Barker on the warrant at that time.
Earlier in the evening, Petitioner and Barker had been with Petitioner's friend, Eric Meyer. The night before Petitioner's trial, Meyer and Petitioner had a conversation, which was recorded by the Washoe County Jail, in which it appeared that Meyer planned to testify that the guns found in the rental vehicle were his. After this conversation, Reno Police Officers Silver and Lever arrested Meyer on a misdemeanor warrant and brought him back to the station for an interview. Meyer did not say much during the interview but did make some comments to the effect that the guns were his. Lever wrote a report about the interview, and Thomas swore out an affidavit aimed at securing a seizure order for Meyer's DNA.
Barker testified at the trial. Meyer, who was not disclosed until the night before trial, did not. [Footnote 3: The trial court found the disclosure of Meyer was untimely and therefore precluded his testimony. However, the court also stated that if it allowed Meyer to testify it would allow the introduction of DNA evidence that it had previously excluded pursuant to defense motion.].

(ECF No. 34 at 1-2 (internal citations omitted).)

         On December 6, 2006, a jury found Petitioner guilty of two counts of possession of a firearm by an ex-felon, one count of possession of a controlled substance, one count of possession of a controlled substance for the purpose of sale, and one count of trafficking in a controlled substance. (ECF No. 19-2.) Because they were lesser-included offenses, the counts of possession of a controlled substance and possession of a controlled substance for the purpose of sale merged into the count of trafficking in a controlled substance. (ECF No. 20-1 at 41-42.)

         Petitioner moved for a new trial, and an evidentiary hearing was held. (ECF Nos. 19-4, 20.) Petitioner's motion was denied. (ECF No. 20 at 96.) Petitioner was sentenced to three concurrent terms of life imprisonment with the possibility of parole after ten years. (ECF No. 20-2.) Petitioner appealed, and the Nevada Supreme Court affirmed. (ECF No. 21-1.)

         Petitioner filed a state habeas petition, a first-amended state habeas petition, and a supplemental, counseled state habeas petition on September 15, 2009; February 24, 2010; and August 6, 2010, respectively. (ECF Nos. 21-3, 22, 22-2.) The state district court conducted an evidentiary hearing and denied the petition. (ECF No. 23-2.) The Nevada Supreme Court affirmed the denial. (ECF No. 23-8.) Petitioner moved for rehearing. (ECF No. 23-9.) The Nevada Supreme Court granted the motion, reinstated the appeal, and again affirmed the state district court's denial. (ECF No. 23-12.) Petitioner again moved for rehearing. (ECF No. 23-14.) The Nevada Supreme Court denied the request. (ECF No. 23-15.)

         Petitioner dispatched his federal habeas petition for filing on February 19, 2015. (ECF No. 8.) Respondents moved for clarification of the petition. (ECF No. 13.) Petitioner responded and thereafter, on March 24, 2016, filed a first-amended petition. (ECF Nos. 14, 15.) This Court denied Respondents' motion to clarify as moot. (ECF No. 33.)

         Respondents moved to dismiss the first-amended petition. (ECF No. 16.) This Court denied, in part, and granted, in part, the motion. (ECF No. 34.) Specifically, this court determined that Ground Eleven was unexhausted; Grounds Three and Nine were exhausted; Ground Three was not procedurally defaulted; Ground Four was procedurally defaulted, but the cause and prejudice analysis would be deferred to this order; and the motion to dismiss Grounds One, Five through Eight, and Ten, insofar as they contained allegations not raised before the Nevada Supreme Court, was denied without prejudice. (Id. at 12.) This Court ordered Petitioner to file a motion to dismiss seeking partial dismissal of the unexhausted claim, a motion to dismiss the entire petition without prejudice in order to return to state court to exhaust the unexhausted claim, or a motion for other appropriate relief. (Id.) Petitioner moved to dismiss Ground Eleven. (ECF No. 35.) This Court granted the motion. (ECF No. 36.)

         Respondents answered the remaining claims on April 11, 2018. (ECF No. 39.) Petitioner replied on July 19, 2018. (ECF No. 47.)

         III. LEGAL STANDARD

         28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“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 state 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.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state 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.” Id. at 75 (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 409-10) (internal citation omitted).

         The Supreme Court has instructed that “[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 stated “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the 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).

         IV. DISCUSSION

         A. Ground One

         In Ground One, Petitioner argues that his federal constitutional rights were violated when his appellate counsel failed to consult with him about the appeal and consider the issues that Petitioner wanted raised.[1] (ECF No. 15 at 5.) In Petitioner's state habeas appeal, the Nevada Supreme Court held:

appellant claims that appellate counsel was ineffective for failing to consult with him about the appeal. Appellant fails to demonstrate that he was prejudiced because he failed to demonstrate that there were any claims that appellate counsel should have raised that had a reasonable probability of success on appeal. Therefore, the district court did not err in denying this claim.

(ECF No. 23-8 at 6-7; ECF No. 23-12 at 9-10.) This ruling was reasonable.

         In Strickland v. Washington, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1) that the attorney's “representation fell below an objective standard of reasonableness, ” and (2) that the attorney's deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The petitioner's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

         Where a state district court previously adjudicated the claim of ineffective assistance of counsel under Strickland, establishing that the decision was unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the United States Supreme Court instructed:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” [Strickland, 466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles[ v. Mirzayance, 556 U.S. 111, 123 (2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonably argument that counsel satisfied Strickland's deferential standard.

Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (“When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply; hence, the Supreme Court's description of the standard as ‘doubly deferential.'”).

         The Strickland standard is also utilized to review appellate counsel's actions: a petitioner must show “that [appellate] counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them” and then “that, but for his [appellate] counsel's unreasonable failure to file a merits brief, [petitioner] would have prevailed on his appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000).

         Petitioner's appellate counsel testified at the post-conviction evidentiary hearing that she never spoke with Petitioner before filing the opening brief, never conferred with him about his case, and never consulted with him about the facts and the issues. (ECF No. at 96-97.) Petitioner's appellate counsel elaborated that discussing an appeal with her client is “not [her] practice in appellate work” because she is “restricted to the record and [she] proceed[s] on the record.” (Id. at 97.)

         Petitioner contends that this testimony demonstrates that his appellate counsel was deficient. This contention may have merit. See Strickland, 466 U.S. at 688 (explaining that counsel has a “duty to advocate the defendant's cause and . . . consult with the defendant on important decisions and to keep the defendant informed of important developments”). However, because the Nevada Supreme Court denied Petitioner's claim on the basis that Petitioner failed to demonstrate prejudice and because that finding was reasonable, this court declines to address Petitioner's appellate counsel's alleged deficiency. See Id. at 697 (explaining that a court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court need not consider the other).

         Beyond the two failures that Petitioner alleges in Grounds Two and Seven, which are discussed below, Petitioner fails to identify, with any specificity, any meritorious issue that he would have discussed with his appellate counsel had she consulted with him. Accordingly, as the Nevada Supreme Court reasonably concluded, Petitioner has not met his burden of demonstrating prejudice. See Strickland, 466 U.S. at 694; Smith, 528 U.S. at 285. The Court declines to grant Petitioner federal habeas relief for Ground One.

         B. Ground Two

         In Ground Two, Petitioner argues that his federal constitutional rights were violated because his appellate counsel failed to raise a claim of insufficient evidence on appeal. (ECF No. 15 at 9.) Petitioner elaborates that there was no proof that he had knowledge that the drugs or firearms were in the vehicle and there was no physical evidence tying him to the drugs or firearms. (Id. at 9-10.) In Petitioner's state habeas appeal, the Nevada Supreme Court held:

[A]ppellant claims that appellant counsel was ineffective for failing to argue on appeal that the evidence of trafficking in a controlled substance and being a felon in possession of a firearm was insufficient. Appellant fails to demonstrate that appellate counsel was deficient or that he was prejudiced because the evidence supporting the convictions, when viewed in the light most favorable to the State, was sufficient to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. NRS 453.3385(1); NRS 202.360; Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State, 108 Nev. 53, 56, 835 P.2d 571, 573 (1992). Therefore, the district court did not err in denying this claim.

(ECF No. 23-12 at 9.) This ruling was reasonable.

         Natalie Brignand testified that her friend, Lisa Moore, asked her to rent a vehicle for Petitioner because Petitioner “didn't have a vehicle and he wasn't able to rent the car himself, being as how he didn't have a major credit card.” (ECF No. 18-5 at 25-27.) Brignand did not know Petitioner at that time. (Id. at 26.) Brignand testified that she did not drive the rental vehicle, a gold Chevy Malibu, until after Petitioner's arrest. (Id. at 29.) Brignand also testified that she had no personal property in the vehicle. (Id.)

         Marla Barker, who had been dating Petitioner for approximately two weeks before August 21, 2006, testified about Petitioner's actions on that evening. (ECF No. 18-7 at 20.) Barker explained that she went to dinner with Petitioner; Petitioner's friend, Eric Meyer; and Meyer's son. (Id. at 30, 37, 54.) Following dinner, outside of the restaurant, Barker explained that Petitioner and Meyer were standing “at the back of the car, ” with the trunk open, and she believed she saw Meyer “[e]ither put something in or take something out” of the Malibu's trunk. (Id. at 60, 69-70.) Barker explained that she “wasn't really paying that much attention. [She] just saw the movement and kept talking. (Id. at 70.)

         Barker testified that she and Petitioner planned to accompany Meyer and his son to Meyer's residence. (Id. at 41.) Meyer's wife arrived at the restaurant to drive Meyer and Meyer's son. (Id.) Barker got in the Malibu with Petitioner, and Petitioner drove a block and a half to the Lamplighter bar, near where Barker's vehicle was parked. (Id. at 41-42.) Barker wished to drive her own vehicle to Meyer's residence, and Petitioner, who wanted to make sure Barker followed him in her own vehicle, kept Barker's purse and dropped Barker off on the side of the road outside the Lamplighter bar. (Id. at 42, 56-57.) Barker ran across the street to get to her vehicle, and as she was doing so, she noticed police lights outside the Lamplighter bar and went back to see what was happening. (Id. at 42-43.)

         Patrol Officer John Silver testified that Petitioner was under investigation by the Reno Police Department and that the police had probable cause to arrest Petitioner for a misdemeanor crime. (ECF No. 18-5 at 49, 53-54.) On August 21, 2006, while he was patrolling in the “Lake and Mill area, ” Officer Silver observed Petitioner driving a Malibu. (Id. at 55-56.) Petitioner pulled the vehicle over on Mill Street and “exit[ed] the gold vehicle and beg[an] . . . to walk southbound across Mill Street over towards the Lakemill Lodge.” (Id. at 60-61.) Officer Silver pulled in behind the Malibu, and when Petitioner saw the patrol vehicle, Petitioner “turned around and walked back towards . . . the Chevy Malibu.” (Id. at 61, 63.) When Petitioner reached the vehicle, “[h]e opened the door and leaned inside as if he was either putting an item in there or removing an item.” (Id. at 63.) Petitioner then shut the vehicle's door and “again began walking across the street.” (Id. at 64.) Officer Silver exited his vehicle, told Petitioner “to stop and to come towards” him, and then “placed [Petitioner] in handcuffs and sat him on the curb.” (Id. at 64-65.)

         Barker approached Officer Silver and Petitioner inquiring what was happening. (Id. at 65.) Barker's purse was in the Malibu, and she consented to a search of it. (Id. at 67.) A “clear [b]aggie that contained a crystal white substance” was found in Barker's purse. (Id. at 68-69, 71.) Barker testified that she did not know that the drugs were in her purse and explained that she told the police that they did not belong to her. (ECF No. 18-7 at 45.)

         Officer Silver testified that the search of the Malibu also revealed “a large plastic Baggie” containing “a large amount . . . of another crystal white substance” found “in between the center console and the driver's seat.” (ECF No. 18-5 at 74-75.) Maria Fassett, an employee of the forensic science division of the Washoe County Sheriff's Office, testified that “the net weight of the crystalline substance” found in the large plastic baggie was 6.57 grams, and the substance found in the baggie in Barker's purse was .62 grams. (ECF No. 18-6 at 98-99, 105.) Fassett testified that both substances were identified as methamphetamine. (Id. at 106-107.)

         Patrol Officer Joseph Lever testified that he assisted in the investigation on August 21, 2006, in part, by searching the trunk of the Malibu. (ECF No. 18-6 at 53, 55). Officer Lever testified that he “found a black duffel-style bag. And when [he] opened the black duffel bag, [he] found two handguns” and “an eyeglass case that contained multiple plastic [b]aggies, empty, that were similar in what's normally used to package narcotics.” (Id. at 60.) A “men's button-up short-sleeve shirt, ” a men's-sized leather jacket, and a fanny pack were also found in the duffel bag. (Id. at 82, 90-91; see also ECF No. 18-7 at 25, 48 (testimony of Barker that Petitioner kept clothes in the trunk of the Malibu and that she saw Petitioner wearing the shirt found in the duffel bag “[t]he night before or - - could have been the two nights before or the night before” Petitioner was arrested).) One of the firearms was a “.357 revolver handgun” and the other was a “black semiautomatic gun.” (ECF No. 18-6 at 65-66.) Officer Lever testified that “the significance of the firearms, coupled with the amount of narcotics, the package of material and everything else, led [him] to believe that . . . those items together would be definitely involved in the sales of narcotics.” (Id. at 69.) Officer Lever also testified that “with the quantity found in the car being what it was, and the amount of empty [b]aggies, it would make [him] believe that the empty [b]aggies were going to be used to hold smaller quantities . . . so they could be sold.” (Id. at 72.) There were “[n]o useable fingerprints” on the semiautomatic weapon or the drug-packaging materials and no fingerprints on the revolver. (ECF No. 18-6 at 108-09, 111-12 (testimony of Dean Kaumans, a forensic investigator with the Washoe County Sheriff's Office); ECF No. 18-7 at 1 (same).)

         Officer Reed Thomas testified that he had been sporadically surveilling Petitioner on August 21, 2006, and had observed Petitioner driving the Malibu earlier that evening. (ECF No. 18-7 at 76-78.) Officer Thomas obtained Brignand's consent to search the Malibu. (Id. at 82.) Petitioner told Officer Thomas that the items found in the vehicle were not his or Barker's. (Id. at 84.) However, Petitioner then told Officer Thomas “to get the DEA” because he could “buy 5 pounds of dope at two places in Nevada and two in California right now.” (Id. at 85.) Patrol Officer Sean Schwartz testified that he found “$511 in one of [Petitioner's] pockets” during a pat-down search subsequent to Petitioner's arrest. (ECF No. 18-6 at 48-50.)

         Petitioner was convicted of one count of trafficking in a controlled substance and two counts of being an ex-felon in possession of a firearm. (ECF No. 20-2 at 2.)

         1. Trafficking in a controlled substance

         NRS § 453.3385(1) provides that “a person who knowingly or intentionally sells, manufactures, delivers or brings into this State or who is knowingly or intentionally in actual or constructive possession of . . . any controlled substance which is listed in schedule I, except marijuana . . . shall be punished” if the amount “is 4 grams or more.” The Nevada Supreme Court's finding that there was sufficient evidence to convict Petitioner of trafficking in a controlled substance was reasonable.

         Although Brignand rented the Malibu, the evidence demonstrated that she did not operate the vehicle or place any of her personal belongings in the vehicle before Petitioner's arrest. (ECF No. 18-5 at 25-29.) Instead, the evidence demonstrated that the Malibu was rented for Petitioner, and Petitioner had primary control of the vehicle during the entirety of the rental period. (Id.) The evidence also demonstrated that Petitioner was operating the Malibu before his arrest. According to Barker, Petitioner drove her from the restaurant to the Lamplighter where she exited the vehicle and ran across the street. (ECF No. 18-7 at 42, 56-57.) This is consistent with Officer Silver's testimony that he observed Petitioner driving the Malibu down Mill Street. (ECF No. 18-5 at 60). Officer Silver testified that Petitioner exited the vehicle, but when Petitioner noticed him, Petitioner “opened the door and leaned inside as if he was either putting an item in there or removing an item.” (Id. at 63.) Thereafter, Officer Silver found “a large plastic Baggie” containing “a large amount . . . of another crystal white substance” found “in between the center console and the driver's seat.” (ECF No. 18-5 at 74-75.) That substance was found to be methamphetamine weighing 6.57 grams. (ECF No. 18-6 at 98-99, 105-06.) This evidence demonstrates that Petitioner knowingly and intentionally possessed methamphetamine in an amount greater than four grams. See NRS § 453.3385(1).

         Petitioner contends that there was insufficient evidence demonstrating that he possessed the methamphetamine because there were other people in the vehicle who had an opportunity to leave the methamphetamine. (ECF No. 15 at 9-10 (citing McGervey v. State, 114 Nev. 460, 464, 958 P.2d 1203, 1206 (1998) (concluding “that the State's evidence was not sufficient to establish that McGervey exercised dominion and control over the marijuana at issue [because] a number of people had an opportunity to leave the marijuana in the living room”); Sanders v. State, 110 Nev. 434, 436, 874 P.2d 1239, 1240 (1994) (concluding that there was insufficient evidence demonstrating that the defendant knew about or exercised control over the controlled substance because many people had access to the motel room in which the controlled substance was found); Konold v. Sheriff, Clark Cnty, 94 Nev. 289, 290, 579 P.2d 768, 769 (1978) (reasoning that mere presence near the discovery of a narcotic is insufficient to show possession); United States v. Crain, 33 F.3d 480, 486 (5th Cir. 1994) (“[W]hen two or more people are occupying a place, a defendant's control over the place is not by itself enough to establish constructive possession of contraband found there.”).) Indeed, this was Petitioner's defense at trial. (See ECF No. 22-5 at 198 (Petitioner's trial counsel's testimony at the postconviction evidentiary hearing).)

         While Meyer and Meyer's son may have been in the Malibu earlier in the evening and Barker may have been in the Malibu before the stop, Officer Silver testified that Petitioner was operating the vehicle before the stop, and he observed Petitioner lean in through the driver-side door and either place an item or remove an item from the interior of the vehicle. (ECF No. 18-5 at 55-56, 63.) Because evidence is viewed “in the light most favorable to the prosecution, ” Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner's argument that there was insufficient evidence that he possessed the methamphetamine lacks merit.

         Because the Nevada Supreme Court's finding that there was sufficient evidence to convict Petitioner of trafficking in a controlled substance was reasonable, its finding that Petitioner's appellate counsel was not ineffective for failing to raise this claim on direct appeal was also reasonable. See Strickland, 466 U.S. at 688; Smith, 528 U.S. at 285; Jackson, 443 U.S. at 319 (concluding that on direct review of a sufficiency of the evidence claim, a state court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”); Jones v. Barnes, 463 U.S. 745, 754 (1983) (“For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. Nothing in the Constitution or our interpretation of that document requires such a standard.”).

         2. Ex-felon in possession of a firearm

         NRS § 202.360(1)(b) provides that “[a] person shall not own or have in his or her possession or under his or her custody or control any firearm if the person . . . [h]as been convicted of a felony.” The Nevada Supreme Court's finding that there was sufficient evidence to convict Petitioner of two counts of being an ex-felon in possession of a firearm was reasonable.

         Officer Lever testified that he found a .357 revolver handgun and a black semiautomatic handgun in a duffel bag in the Malibu's trunk. (ECF No. 18-6 at 60, 65-66.) Although there were no fingerprints found on the weapons (ECF No. 18-6 at 108-09), the firearms were found in the trunk of the vehicle Petitioner exercised dominion and control over, Petitioner was driving the vehicle before the stop, and Petitioner was the sole person present near the vehicle when Officer Silver made contact. Additionally, Barker testified that Petitioner and Meyer were standing at the back of the Malibu with the trunk open just before Petitioner's arrest. (ECF No. 18-7 at 70.) And, importantly, a shirt, which Barker identified as being one that Petitioner had previously worn, and a men's leather jacket were also found in the duffel bag. (ECF No. 18-6 at 82, 90-91; ECF No. 18-7 at 25, 48.) Moreover, Barker testified that Petitioner kept clothes in the Malibu's trunk, and Petitioner was private with the Malibu's trunk contents: “[h]e'd just quickly finish whatever he was doing and shut it.” (ECF No. 18-7 at 25-26.) During the second part of the bifurcated trial, “certified proof of [Petitioner]'s prior conviction in the Second Judicial District Court for eluding a police officer in December 1998” was admitted. (ECF No. 19 at 60, 63.) This evidence demonstrates that Petitioner, who had previously been convicted of a felony, “possess[ed] or [had] under his . . . control” two different firearms. Nev. Rev. Stat. § 202.360(1)(b); cf. Woodall v. State, 97 Nev. 235, 236, 627 P.2d 402, 402 (1981) (holding that there was insufficient evidence that appellant possessed the firearm because it “was discovered in a truck occupied by both appellant and his companion[, t]he circumstances do not resolve who placed it there[, and a]ppellant's companion . . . acknowledged the weapon was his and that appellant knew nothing about its existence”).

         Because the Nevada Supreme Court's finding that there was sufficient evidence to convict Petitioner of being an ex-felon in possession of a firearm was reasonable, its finding that Petitioner's appellate counsel was not ineffective for failing to raise this claim on direct appeal was also reasonable. Strickland, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.