Anthony Walker v. William Donat et al, No. 3:2006cv00425 - Document 26 (D. Nev. 2009)
Court Description: ORDERED that the remaining claims in the petition for writ of habeas corpus shall be DENIED on the merits and that this action shall be DISMISSED with prejudice. Clerk shall enter final judgment accordingly in favor of Rs and against P, dismissing the action with prejudice. Signed by Judge Howard D. McKibben on 8/31/2009. (Copies have been distributed pursuant to the NEF - DRM)
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Anthony Walker v. William Donat et al Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 ANTHONY CHARLES WALKER, 10 Petitioner, 3:06-cv-00425-HDM-RAM 11 vs. 12 ORDER 13 WILLIAM DONAT, et al., 14 Respondents. 15 16 This habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision on 17 the merits on the remaining claims. Petitioner Anthony Charles Walker seeks to set aside his 18 July 27, 2004, Nevada state conviction, pursuant to a guilty plea, of two counts of robbery with 19 the use of a deadly weapon and one count of robbery. In the claims that remain before the 20 Court, petitioner challenges his conviction based primarily upon alleged ineffective assistance 21 of counsel. 22 Governing Law 23 The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a “highly 24 deferential standard for evaluating state-court rulings.” Lindh v. Murphy, 117 S.Ct. 2059, 25 2066 n.7(1997). Under this deferential standard of review, a federal court may not grant 26 habeas relief merely on the basis that a state court decision was incorrect or erroneous. E.g., 27 Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Instead, under 28 U.S.C. § 2254(d), 28 the federal court may grant habeas relief only if the decision: (1) was either contrary to or Dockets.Justia.com 1 involved an unreasonable application of clearly established law as determined by the United 2 States Supreme Court; or (2) was based on an unreasonable determination of the facts in 3 light of the evidence presented at the state court proceeding. E.g., Mitchell v. Esparza, 540 4 U.S. 12, 15, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003). 5 A state court decision is “contrary to” law clearly established by the Supreme Court only 6 if it applies a rule that contradicts the governing law set forth in Supreme Court case law or 7 if the decision confronts a set of facts that are materially indistinguishable from a Supreme 8 Court decision and nevertheless arrives at a different result. E.g., Mitchell, 540 U.S. at 15-16, 9 124 S.Ct. at 10. A state court decision is not contrary to established federal law merely 10 because it does not cite the Supreme Court’s opinions. Id. Indeed, the Supreme Court has 11 held that a state court need not even be aware of its precedents, so long as neither the 12 reasoning nor the result of its decision contradicts them. Id. Moreover, “[a] federal court may 13 not overrule a state court for simply holding a view different from its own, when the precedent 14 from [the Supreme] Court is, at best, ambiguous.” Mitchell, 540 U.S. at 16, 124 S.Ct. at 11. 15 For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme 16 Court precedent is not contrary to clearly established federal law. 17 A state court decision constitutes an “unreasonable application” of clearly established 18 federal law only if it is demonstrated that the court’s application of Supreme Court precedent 19 to the facts of the case was not only incorrect but “objectively unreasonable.” E.g., Mitchell, 20 540 U.S. at 18, 124 S.Ct. at 12; Davis v. Woodford, 333 F.3d 982, 990 (9th Cir. 2003). 21 To the extent that the state court’s factual findings are challenged intrinsically based 22 upon evidence in the state court record, the “unreasonable determination of fact” clause of 23 Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 24 943, 972 (9th Cir. 2004). This clause requires that the federal courts “must be particularly 25 deferential” to state court factual determinations. Id. The governing standard is not satisfied 26 by a showing merely that the state court finding was “clearly erroneous.” 393 F.3d at 973. 27 Rather, the AEDPA requires substantially more deference: 28 -2- 1 2 3 4 5 . . . . [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. 6 If the state court factual findings withstand intrinsic review under this deferential 7 standard, they then are clothed in a presumption of correctness under 28 U.S.C. § 2254(e)(1); 8 and they may be overturned based on new evidence offered for the first time in federal court, 9 if other procedural prerequisites are met, only on clear and convincing proof. 393 F.3d at 972. 10 On a claim of ineffective assistance of counsel, the petitioner must satisfy the two- 11 pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 12 (1984). He must demonstrate that: (1) counsel’s performance fell below an objective standard 13 of reasonableness; and (2) counsel’s defective performance caused actual prejudice. On the 14 performance prong, the issue is not what counsel might have done differently but rather is 15 whether counsel’s decisions were reasonable from his perspective at the time. The reviewing 16 court starts from a strong presumption that counsel’s conduct fell within the wide range of 17 reasonable conduct. On the prejudice prong, the petitioner must demonstrate a reasonable 18 probability that, but for counsel’s unprofessional errors, the result of the proceeding would 19 have been different. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003). 20 When evaluating claims of ineffective assistance of appellate counsel, the performance 21 and prejudice prongs of the Strickland standard partially overlap. E.g., Bailey v. Newland, 263 22 F.3d 1022, 1028-29 (9th Cir. 2001); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). 23 Effective appellate advocacy requires weeding out weaker issues with less likelihood of 24 success. The failure to present a weak issue on appeal neither falls below an objective 25 standard of competence nor causes prejudice to the client for the same reason – because the 26 omitted issue has little or no likelihood of success on appeal. Id. 27 28 The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Davis, 333 F.3d at 991. -3- 1 Ground 1: Effective Assistance – Jury Trial Right on Weapon Enhancement 2 In Ground 1, petitioner alleges in principal part that he was denied effective assistance 3 of counsel when counsel allegedly failed to advise him that he had a right specifically to have 4 a jury decide the issue of whether the weapon enhancement should be applied on the 5 charges for robbery with the use of a deadly weapon. 6 Walker pled guilty to three different robberies of three different individuals, including 7 the charges in Counts 4 and 12 of the amended information of robbery with the use of a 8 deadly weapon. In Count 4, he was charged with having robbed Lenny D’Amico on July 26, 9 2003, using a firearm and/or BB gun. In Count 12, he was charged with having robbed 10 Genene Tekle on August 16, 2003, using a firearm and/or BB gun.1 The preliminary hearing 11 testimony reflected that both D’Amico and Tekle were cab drivers in the Las Vegas area.2 12 At the preliminary hearing, D’Amico testified, inter alia, as follows. He was giving 13 Walker and his wife a taxi ride on July 26, 2003. When they arrived at the requested 14 destination, Walker’s wife jumped out of the cab and ran off. When D’Amico inquired about 15 payment of the fare, Walker pulled out a gun, placed the gun against D’Amico’s right rib cage, 16 and demanded D’Amico’s money. Although D’Amico initially testified on direct that he did not 17 see the gun, he testified on cross-examination that he lifted his arm and looked at the gun 18 before he surrendered his money. He believed that the gun was a black semiautomatic. After 19 D’Amico turned over all of his money and Walker was getting ready to leave, Walker told 20 D’Amico that if he moved in the next five minutes “I’m blasting you.”3 21 //// 22 23 24 25 26 27 28 1 #18-10, Ex. I; #18-11, Ex. J. 2 The Court m akes no credibility findings or other factual findings regarding the truth or falsity of any state court evidence. The Court t sum m arizes the evidence solely as background to the issues presented, in this instance to reflect the evidence available to the State at the tim e of petitioner’s plea. No statem ent of fact in describing testim ony or evidence constitutes a finding of fact or credibility determ ination by this Court. Further, the Court does not sum m arize all of the state court evidence. The Court instead sum m arizes the evidence m ost pertinent to petitioner’s particular claim s. 3 #18, Ex. B, at 58-70 & 73-75. -4- 1 Tekle testified, inter alia, as follows. He picked up Walker’s wife at a Budget Suites 2 at Tropicana and Wynn and took her to an apartment complex to pick up Walker, purportedly 3 to then take the couple to the Hard Rock Casino. When they arrived at the apartment 4 complex, Walker was standing outside. Walker got into the cab, and Walker’s wife then 5 exited the cab and walked into the apartment complex. While Tekle and Walker ostensibly 6 were waiting for Mrs. Walker’s return, Walker pulled out a gun and told Tekle to “give me what 7 you got.” Tekle saw a black gun that he believed was a square semiautomatic. Similar to the 8 D’Amico robbery, Walker placed the gun against Tekle’s right rib cage.4 9 The written guilty plea agreement included, inter alia, express statements and 10 acknowledgments by Walker: (1) that he was pleading guilty to, inter alia, the two counts of 11 robbery with the use of a deadly weapon “as more fully alleged in the charging document 12 attached” to the plea agreement; (2) that he understood by pleading guilty he admitted the 13 facts “which support all the elements of the offense(s) to which I now plead as set forth in” the 14 attached charging document; (3) that he understood as a consequence of pleading guilty to 15 Counts 4 and 12 he must be sentenced, on each count, to a minimum of not less than 2 years 16 and a maximum of not more than 15 years “plus an equal and consecutive minimum term of 17 not less than TWO (2) years and a maximum term of not more than FIFTEEN (15) years for 18 use of a deadly weapon;” (4) that he had not been promised or guaranteed any particular 19 sentence by anyone; (5) that he knew that his sentence was to be determined by the court 20 within the limits prescribed by statute; (6) that, by entering a plea of guilty, he understood that 21 he was waiving and forever giving up a number of rights and privileges including, inter alia, 22 “[t]he constitutional right to a . . . public trial by an impartial jury” at which “the State would 23 bear the burden of proving beyond a reasonable doubt each element of the offense charged;” 24 (7) that he had “discussed the elements of all of the original charge(s) against me with my 25 attorney and I understand the nature of the charge(s) against me;” (8) that he understood 26 “that the State would have to prove each element of the charge(s) against me at trial;” (9) that 27 28 4 #18, Ex. B, at 41-57. -5- 1 he had discussed with his attorney “any possible defenses, defense strategies and 2 circumstances which might be in my favor;” (10) that “[a]ll of the foregoing elements, 3 consequences, rights, and waiver of rights have been thoroughly explained to me by my 4 attorney;” and (11) that “[m]y attorney has answered all my questions regarding this guilty plea 5 agreement and its consequences to my satisfaction and I am satisfied with the services 6 provided by my attorney.”5 7 Both Walker and his wife entered guilty pleas in the same proceeding. Walker was 8 present during his wife’s plea colloquy immediately prior to his own. The state district court 9 judge went through the full colloquy with each defendant.6 10 At the time of his plea, Walker was 38 years old; he had a college education; and he 11 could read, write and understand the English language. During his plea colloquy, Walker 12 acknowledged, inter alia: (1) that he had been given a copy of the amended information and 13 that he was familiar with the charges against him; (2) that he was pleading guilty to, inter alia, 14 the two counts of robbery with the use of a deadly weapon; (3) that he was pleading guilty 15 freely and voluntarily and that no one was forcing him to plead guilty; (4) that he understood 16 as a consequence of pleading guilty to Counts 4 and 12 he would be sentenced, on each 17 count, to a minimum of not less than 2 years and a maximum of not more than 15 years plus 18 an equal and consecutive minimum term of not less than 2 years and not more than 15 19 years; (5) that he knew that sentencing was completely up to the court; (6) that he understood 20 that he was giving up the constitutional rights listed in the guilty plea agreement; (7) that he 21 had discussed the case with his attorney prior to signing the guilty plea memorandum; and 22 (8) that his attorney had answered all of his questions.7 23 24 Walker further made the following express admissions of fact, in which he specifically admitted that he committed the offenses as charged in Counts 4 and 12: 25 26 5 #18-11, Ex. J. 27 6 #18-12, Ex. K. 28 7 #18-12, Ex. K, at 8-12. -6- 1 THE COURT: Are you pleading guilty because on or between July 26, 2003, and August 16, 2003, in Clark County, State of Nevada, in count 4, robbery with use of a deadly weapon, did you on or about July 26, 2003, willfully, unlawfully, and feloniously take personal property from the person of Lenny D’Amico, it was money, by means of force or fear of injury to without the consent and against the will of Lenny D’Amico using a deadly weapon, a firearm and/or a BB gun during the commission of said crime and you acted in concert with Mrs. Walker to commit the offences and you aided and abetted each other or, directly or indirectly counseling and encouraging each other to commit the crime of robbery with use of a deadly weapon? 2 3 4 5 6 7 8 DEFENDANT MR. WALKER: Yes Your Honor. 9 THE COURT: All right and then in count 12, another robbery with use of a deadly weapon, did you also on or about the 16th day of August, 2003, in Clark County, State of Nevada, willfully, unlawfully, and feloniously take personal property, money, lawful money of the United States from, Genene Tekle in his presence, or by means of force or fear of injury to, without the consent or against the will of Genene Tekle and defendant used a deadly weapon to wit: a firearm and/or a BB gun during the commission of the crime and you acted in concert with Ms. Walker; you aided and abetted each other or directly or indirectly counseling and/or encouraged each other to commit the crime of robbery with use of a deadly weapon? 10 11 12 13 14 15 DEFENDANT MR. WALKER: Yes, Your Honor. 16 17 18 19 #18-12, Ex. K, at 11. The state district court thereupon found that Walker understood the nature and consequences of his plea and that his plea was voluntarily and freely given.8 20 On the state post-conviction review, petitioner presented a claim corresponding to 21 federal Ground 1 that defense counsel allegedly was ineffective for failing to advise him 22 specifically that he had a right to have a jury decide the weapon enhancement issue. The 23 Supreme Court of Nevada rejected petitioner’s claim on the following grounds: 24 . . . [A]ppellant claimed that his trial counsel was ineffective for failing to object to the deadly weapon enhancement. Appellant claimed that his trial counsel failed to inform him that his sentence would be enhanced. Appellant 25 26 27 28 8 #18-12, Ex. K, at 11. -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 claimed that his trial counsel further failed to inform him that he had a right to have a jury decide the issue of the deadly weapon and that he waived that right by entry of his guilty plea. Appellant failed to demonstrate that his trial counsel’s performance was deficient or that he was prejudiced. Appellant was informed during the plea canvass and in the written plea agreement that two of the robbery charges included a deadly weapon enhancement. Appellant was specifically informed that for each of the robbery with use of a deadly weapon counts that the deadly weapon enhancement required imposition of a term equal and consecutive to the term for the primary offense. The written plea agreement further informed appellant that he waived his right to a jury trial by entry of his guilty plea, and appellant acknowledged during the plea canvass that he understood the waiver of his constitutional rights as set forth in the written plea agreement. Attached to the guilty plea agreement was an amended information setting forth the charges, which included two counts of robbery with the use of a deadly weapon. Appellant acknowledged his receipt of the amended information, and appellant affirmatively acknowledged the facts supporting the deadly weapon enhancements for two counts of robbery with the use of a deadly weapon. Appellant further received a benefit by entry of his guilty plea in that he avoided additional charges that would have exposed him to a greater period of incarceration. [FN4] Therefore, we conclude that the district court did not err in denying this claim. [FN4] The State agreed to the dismissal of the following charges in exchange for the guilty plea: 3 counts of conspiracy to commit kidnapping, three counts of conspiracy to commit robbery and three counts of first degree kidnapping. #18-18, Ex. W, Order of Affirmance, at 2-3. 19 The Nevada Supreme Court’s rejection of this claim was neither contrary to nor an 20 unreasonable application of Strickland or other relevant clearly established law as determined 21 by the United States Supreme Court. 22 23 24 25 26 27 In Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977), the United States Supreme Court held: . . . . [T]he representations of the defendant, his lawyer, and the prosecutor at . . . a [plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible. 28 -8- 1 431 U.S. at 73-74, 97 S.Ct. at 1629. The Blackledge Court observed that “a petitioner 2 challenging a plea given pursuant to procedures [similar to those employed by the state court 3 in this case] will necessarily be asserting that not only his own transcribed responses, but 4 those given by two lawyers, were untruthful.” 431 U.S. at 80 n.19, 97 S.Ct. at 1632 n. 19. 5 Under Blackledge, a collateral attack that directly contradicts the responses at the plea 6 proceedings “will entitle a petitioner to an evidentiary hearing only in the most extraordinary 7 circumstances.” Id. 8 In the present case, Walker expressly acknowledged in the written plea agreement 9 together with the plea colloquy, inter alia, that he understood the elements of the charges to 10 which he was entering a guilty plea, that he understood that the State would have to prove 11 each element beyond a reasonable doubt before a jury if he went to trial, that he instead was 12 forever waiving his right to have a jury decide the issues in the case, that he had discussed 13 the case with his attorney, that his attorney had answered all of his questions, and that he 14 was satisfied with his attorney’s representation. Petitioner’s allegation now that he instead 15 was not properly advised as to his right to have a jury decide one of the subsidiary issues in 16 his case, the weapon enhancement issue, flies directly in the face of the declarations that he 17 made at the time of his plea. 18 The plea agreement and plea colloquy clearly reflect that petitioner was advised of his 19 jury trial right and that he waived this right. There is absolutely no requirement that a criminal 20 defendant be specifically advised on the record in plea proceedings that he has a right to a 21 jury trial determination particularly and separately as to each and every one of the myriad 22 subsidiary issues in a criminal prosecution. 23 Walker places principal reliance in this regard upon the Supreme Court decision in 24 Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi 25 v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). These cases provide 26 no support for his claim, for two reasons. 27 First, the Supreme Court was presented in Blakely and Apprendi with sentencing rules 28 under which a sentence could be increased based upon findings made by the sentencing -9- 1 judge, and the high court held instead that a sentence could be enhanced, following a trial, 2 based solely upon facts found by a jury. In Nevada, in contrast, the statutory weapon 3 enhancement was applied – following a trial – based solely upon a jury finding that a weapon 4 was used in the offense. Following such a jury finding, the statute required that a like and 5 consecutive sentence to that imposed on the offense in question automatically be imposed 6 on the weapon enhancement. There were no findings to be made and there was no 7 discretion to be exercised by the sentencing judge with regard to the weapon enhancement. 8 Thus, the situation presented in Walker’s case was not one where at the time of his plea the 9 court and counsel would have erroneously assumed that a judge rather than a jury would 10 make the relevant factual determination on the weapon enhancement. Instead, it was 11 established Nevada law at the time that, absent a plea, the weapon enhancement issue was 12 tried to the jury, as with any of the other myriad issues in a prosecution for robbery with the 13 use of a deadly weapon. The Blakely and Apprendi decisions thus in truth had no impact 14 upon the weapon enhancement and sentencing procedures applicable in Walker’s case. 15 Second, what the Supreme Court did hold in Blakely was that the statutory maximum 16 sentence that may be imposed for Apprendi purposes “is the maximum sentence a judge may 17 impose solely on the basis of the facts reflected in the jury verdict or admitted by the 18 defendant.” 542 U.S. at 303, 124 S.Ct. at 2537 (emphasis in original). Walker quite clearly 19 admitted the facts necessary for imposition of the weapon enhancement in his plea colloquy, 20 and those facts were specifically alleged in the charging instrument. The imposition of the 21 weapon enhancement following the plea thus was fully in accord with Blakely and Apprendi. 22 At bottom, Walker is seeking to bootstrap the Blakely and Apprendi decisions into a 23 new rule – not stated anywhere in those opinions – that a defendant must be specifically 24 advised in connection with a plea colloquy of his right to a jury trial in particular as to a 25 statutory sentence enhancement, over and above being advised generally that he is waiving 26 his jury trial right. This effort is unpersuasive. Petitioner’s allegations that he was not 27 properly advised by defense counsel with regard to his waiver of his jury trial right otherwise 28 contradict the solemn declarations that he made in connection with his plea. -10- 1 The state supreme court’s rejection of this claim therefore was neither contrary to nor 2 an unreasonable application of either Strickland or other relevant clearly established law as 3 determined by the United States Supreme Court. 4 5 Ground 1 accordingly does not provide a basis for federal habeas relief.9 Ground 2: Effective Assistance – Alleged Drug Involvement by Victims 6 In Ground 2, petitioner alleges in principal part that he was denied effective assistance 7 of counsel when trial counsel allegedly failed “to prepare and investigate the case, i.e., of 8 victims’ drug history.” He alleges that “[c]ounsel was informed of the victims’ involvement and 9 pass [sic] history with illegal drugs, [but] counsel failed to investigate.” #6, at 5-5B. 10 //// 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 To the extent that petitioner seeks to present parallel independent substantive due process and equal protection claim s in the federal petition in Ground 1, these claim s, even if arguendo exhausted, are without m erit on both AEDPA and de novo review, for substantially the reasons outlined regarding the ineffective assistance claim . In his reply, petitioner provides argum ent under Ground 1 as to a num ber of claim s not presented in Ground 1 in the federal petition, including claim s of failure to take a direct appeal, failure to challenge the sentences as grossly disproportionate on appeal, failure to investigate, and failure to file defense m otions. See #21, at 15-21. To the extent, if any, that these claim s were included in other grounds of the federal petition that rem ain before the Court, the claim s are addressed infra in the discussion of those rem aining grounds. To the extent that petitioner otherwise seeks to pursue claim s in the reply that were not raised in the petition, the claim s are disregarded. Under Rule 15 of the Federal Rules of Civil Procedure, the procedure for presenting new claim s and allegations after the respondents have answered is by seeking leave to am end, not by inserting new claim s for the first tim e in the federal reply, particularly after the expiration of the federal one-year lim itation period. Petitioner never sought leave to am end. The belated claim in the reply regarding an alleged failure by counsel to file unspecified defense m otions in any event further is unexhausted and lacks the specificity required to state a viable federal habeas claim under Rule 2 of the Rules Governing Section 2254 Cases. Petitioner further seeks to include in the reply -- in a section ostensibly addressed to the standard of review -- additional claim s: (1) that the state district court abused its discretion in accepting the guilty plea when the court allegedly failed to inform W alker of his right to have a jury decide the weapon enhancem ent; and (2) that the state district court abused its discretion in enhancing W alker’s sentence because he allegedly did not adm it to using a dangerous weapon. #21, at 14. These independent substantive claim s were not alleged in the federal petition in Ground 1 or otherwise. There further is som e question as to whether the independent substantive claim s are exhausted because the Suprem e Court of Nevada held that they were not properly presented in a state post-conviction petition attacking a conviction based upon a guilty plea. #1818, Ex. W , at 6-7. In any event, the claim s, on de novo review, are wholly without m erit. W alker did in fact adm it to using a dangerous weapon as alleged in the am ended inform ation. And his argum ent that the state district court was required to inform him that his right to a jury trial applied specifically to the statutory weapon enhancem ents, or to any other subsidiary issue in the case, clearly is without m erit. -11- 1 As discussed in more detail under Ground 1, Walker pled guilty to three different 2 robberies on three different dates of three different individuals in Las Vegas, including two cab 3 drivers. The evidence regarding Walker’s July 26, 2003, robbery of cab driver Lenny D’Amico 4 and his August 16, 2003, robbery of cab driver Genene Tekle is summarized in the discussion 5 under Ground 1. The third robbery to which Walker pled guilty was the August 8, 2003, 6 robbery of Cesar Hernandez, a restaurant worker, on his way home from work.10 7 In his state post-conviction petition, Walker similarly alleged vaguely only that counsel 8 was ineffective “for not investigating the victims past (drug use) when asked by me to do so.” 9 The material just quoted was the entirety of Walker’s presentation in this regard. He did not 10 allege any specifics. Nor did he tender any supporting evidentiary materials with the petition 11 tending to establish that the allegedly requested investigation by counsel would have 12 produced relevant and admissible evidence that had a reasonable probability of affecting the 13 outcome in Walker’s case.11 14 15 The Supreme Court of Nevada rejected the claim presented to that court on the following grounds: 16 . . . [A]ppellant claimed that his trial counsel failed to conduct adequate investigation. The only specific line of investigation identified by appellant was trial counsel’s failure to investigate the victim’s alleged past drug use. 17 18 Appellant failed to demonstrate that his trial counsel’s performance was deficient or that he was prejudiced. Appellant failed to indicate which of the three victims should have been investigated and how the victim’s alleged past drug use had any bearing on the robbery and kidnapping charges in the instant case. In the written guilty plea agreement, appellant acknowledged that he had discussed the charges and any potential defenses with his attorney. Therefore, we conclude that the district court did not err in denying this claim. 19 20 21 22 23 24 #18-18, Ex. W, at 3-4. 25 26 27 28 10 See #18, Ex. B, at 4-41 (prelim inary hearing testim ony); #18-12, Ex. K, at 12 (adm ission of facts of crim e at plea). 11 See #18-15, Ex. S, at 7B. -12- 1 The state supreme court’s rejection of this vague and unsubstantiated claim was 2 neither contrary to nor an unreasonable application of Strickland. Under Nevada state 3 post-conviction practice, a petitioner must attach affidavits, records, or other evidence 4 supporting the factual allegations of the petition; and he may not present merely an 5 unsubstantiated claim. See,e.g., N.R.S. 34.370(4). Petitioner did not allege any specifics, 6 and he did not tender any materials with the state petition supporting his vague accusation 7 that one or more of the victims in the three different robberies had a history of “drug use.” It 8 is doubtful that any such information regarding an alleged history of drug use by one or more 9 of the victims – even if, arguendo, such information in truth would have been developed by 10 a more extensive defense investigation – would have even been admissible at trial, much less 11 that it would have affected the outcome of the proceedings in Walker’s case. A felon 12 convicted on a guilty plea cannot obtain either a state or federal evidentiary hearing merely 13 by vaguely alleging after his plea that his robbery victims had a history of drug use. It takes 14 more than such a vague and unsubstantiated – and likely irrelevant – allegation to effectively 15 challenge a judgment of conviction entered on a guilty plea, particularly following the solid 16 plea colloquy in this case. The state high court’s rejection of this claim was neither contrary 17 to nor an unreasonable application of clearly established federal law. 18 Ground 2 therefore does not provide a basis for federal habeas relief.12 19 20 21 22 23 24 25 26 27 12 To the extent that petitioner seeks to present parallel independent substantive due process and equal protection claim s in Ground 2, these claim s, even if arguendo exhausted, are without m erit on both AEDPA and de novo review, for substantially the reasons outlined regarding the ineffective assistance claim . Petitioner further alleges in federal Ground 2 that counsel failed to obtain Brady m aterials including witness prior records, witness statem ents, “specific evidence which detracts from the credibility of [sic] probative value of testim ony and/or statem ents and/or evidence used by [the] prosecution,” and “prior contrary inconsistent or m istaken, or inaccurate statem ents, oral or written by prosecution witnesses.” #6, at 5 to 5A. W alker does not allege any specifics as to the, e.g., particular witness records, statem ents, and inconsistent statem ents that defense counsel failed to obtain. He m erely lists the above generic categories along with case citations. Although it does not appear that petitioner exhausted any such claim in the state post-conviction proceedings, the claim in any event lacks the specificity required to state a viable federal habeas claim under Rule 2 of the Rules Governing Section 2254 Cases. Generic “laundry lists” of alleged failures by defense counsel fail to state a viable federal habeas claim , and the petitioner m ust allege specific facts tending to show, e.g., how the alleged failure caused particular prejudice to the petitioner. An allegation 28 (continued...) -13- 1 Ground 3: Effective Assistance – Mitigation Evidence 2 In Ground 3, petitioner alleges in principal part that he was denied effective assistance 3 of counsel when trial counsel allegedly failed to present mitigating evidence in support of a 4 lesser sentence at his noncapital sentencing. 5 investigate, prepare, or correct unspecified errors in the pre-sentence report that allegedly 6 were identified for counsel by petitioner; (b) failed to investigate into facts surrounding 7 petitioner’s background, family history, drug dependency, and “need for treatments;” (c) failed 8 to present representatives that petitioner had available in court who were willing to testify in 9 his behalf, including “various community members” who had provided letters of support for 10 petitioner and were willing to speak on his behalf; and (d) failed to provide for a psychological 11 review of petitioner’s mental capacity.13 He alleges that counsel: (a) failed to 12 The transcript of the sentencing reflects that defense counsel informed the state court, 13 inter alia, that Walker had been raised in a Christian home with his father being a minister and 14 his mother being a missionary, that both his father and mother were present at the 15 sentencing, that Walker had got “caught up in the wrong crowd” in college and had become 16 involved in drugs, that his drug problem was the basis for his criminal behavior, including the 17 three robberies, and that Walker and his wife had three children who would be without their 18 19 20 21 22 23 24 25 26 27 28 12 (...continued) only that, e.g., counsel “failed to obtain witness statem ents” fails to set forth a sufficiently specific and viable claim . In his reply, petitioner provides argum ent under Ground 2 as to a num ber of claim s not presented in Ground 2 in the federal petition, including claim s: (1) that counsel failed to investigate the alleged crim es to determ ine whether or not the charges filed against petitioner warranted prosecution on m ultiple counts; and (2) that counsel failed to investigate and present m itigating factors based upon petitioner’s alleged prior m ental health issues, drug addiction, and financial problem s. See #21, at 21-22. The first such claim corresponds to federal Ground 4, which was dism issed as unexhausted. To the extent that the second claim is encom passed within federal Ground 3, it is discussed infra. To the extent that petitioner otherwise seeks to pursue claim s in the reply that were not raised in the petition, the claim s are disregarded. As noted as to Ground 1, under Rule 15 of the Federal Rules of Civil Procedure, the procedure for presenting new claim s and allegations after the respondents have answered is by seeking leave to am end, not by inserting new claim s for the first tim e in the federal reply, particularly after the expiration of the federal one-year lim itation period. Petitioner never sought leave to am end. 13 #6, at 7 to 7A. -14- 1 parents during their incarceration. Counsel noted the sentencing recommendation of 26 to 2 120 months on the various counts, and he argued for concurrent sentencing on all of the 3 counts. With the mandatory consecutive sentencing on the weapon enhancements, such a 4 concurrent sentencing on the three counts would result in petitioner potentially being eligible 5 for parole outside of an institution after 52 months.14 6 Walker also personally addressed the court. Inter alia, Walker sought to correct what 7 he believed were incorrect statements in the pre-sentence report regarding his statements 8 as to the relative responsibility for the offenses between himself and his wife.15 9 The state court judge acknowledged – twice – that she had reviewed the letters written 10 on Walker’s behalf. She noted petitioner’s extensive criminal history and his escalation of this 11 criminal history in 2000, prior to these robberies, to a felony-level offense. She referred to the 12 current offenses as being “drug-induced.” The judge noted, however, that Walker had made 13 poor decisions and that he had exposed two of the victims in the case to an “incredibly 14 dangerous” situation by using a weapon or simulated weapon. She sentenced Walker to 26 15 to 120 month sentences on each of the three counts, and she ran the sentences on the two 16 counts for robbery with the use of a deadly weapon concurrently. She imposed the remaining 17 robbery sentence, however, consecutively to the sentence for one of the two counts for 18 robbery with use of a deadly weapon, such that Walker would have to serve a minimum of 78 19 months prior to potentially being eligible for parole outside of an institution.16 20 On state post-conviction review, petitioner alleged only that defense counsel was 21 ineffective because he “never submitted any mitigating factors as to petitioners [sic] past 22 mental competency and drug use where as [sic] the record will show that petitioner comitted 23 [sic] his offenses to support a drug habit” and because he “failed to present any witness’s [sic] 24 on defendant’s behave [sic] to substantiate or testify as to his family, religion or community 25 26 14 #18-13, Ex. L, at 3-7. 27 15 Id., at 7-8. 28 16 #18-13, Ex. L, at 4 & 8-10. -15- 1 involvement.” Petitioner did not allege any further specifics. He did not tender any supporting 2 evidence with the state petition. He did not allege that counsel was ineffective for failing to 3 correct alleged errors in the pre-sentence report.17 4 5 On state post-conviction review, the Supreme Court of Nevada rejected the claim of ineffective assistance of counsel presented in the state courts on the following grounds: 6 . . . [A]ppellant claimed that his trial counsel was ineffective for failing to present mitigating facts to the sentencing court. Specifically, appellant claimed that his trial counsel should have presented information about appellant’s past mental competency and drug usage to show that the instant crimes were committed to support a drug habit. Appellant further claimed that his trial counsel failed to present witnesses to provide testimony about appellant’s family, religion, and community involvement. 7 8 9 10 Appellant failed to demonstrate that his trial counsel was ineffective in this regard. Appellant failed to identify the past mental health issue and how that would have affected the outcome of the sentencing hearing. Appellant further failed to identify the witnesses, specifically describe the potential testimony, or provide any argument as to how this testimony would have made a difference in the outcome of the proceedings. Appellant’s history of drug usage was set forth in the presentence investigation report. At sentencing, appellant’s trial counsel informed the district court about appellant’s three children, the presence of his parents in the courtroom and appellant’s religious background. Appellant’s trial counsel argued that the crimes committed were out of character and were the results of druginduced episodes. The district court acknowledged reading letters about appellant’s family and religious background. Appellant failed to indicate what further information should have been presented such that there was a reasonable probability of a different sentencing outcome. Therefore, we conclude that the district court did not err in denying this claim. 11 12 13 14 15 16 17 18 19 20 21 #18-18, Ex. W, at 4. 22 The state supreme court’s rejection of this claim was neither contrary to nor an 23 unreasonable application of clearly established federal law as determined by the United 24 States Supreme Court. At the outset, the vague claims presented in state court lacked 25 specific allegations and were unsubstantiated. Petitioner presented no specific allegations 26 that, if proved, would tend to establish a reasonable probability that the outcome of the 27 28 17 #18-15, Ex. S, at 7B. -16- 1 sentencing would have been different if defense counsel had proceeded differently. In any 2 event, in the final analysis, there is no clearly established Supreme Court precedent 3 delineating a standard that should apply to ineffective assistance of counsel claims in 4 noncapital sentencing cases. E.g., Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006). 5 There accordingly is no clearly established federal law as determined by the Supreme Court 6 in this context. Id. Thus, by definition, the state courts’ rejection of the claims was neither 7 contrary to nor an unreasonable application of clearly established federal law as determined 8 by the United States Supreme Court as of the time of the Nevada Supreme Court’s March 28, 9 2006, decision. Ground 3 therefore does not provide a basis for federal habeas relief.18 10 Ground 5: Effective Assistance – Alleged Failure to Prepare and Coercion of Plea 11 In Ground 5, petitioner alleges in principal part that he was denied effective assistance 12 of counsel when trial counsel allegedly coerced him into pleading guilty because counsel 13 allegedly was unprepared to go to trial. Petitioner alleges that “[g]iven the volume of 14 allegations charged, and type of alleged victims involved, the statements of the preliminary 15 hearing, and the inconsistencies of police reports, counsel did nothing in regards to trial 16 preparation.” He alleges that “[c]ounsel simply took advantage of the Petitioner’s mental 17 18 19 20 21 22 23 24 25 26 27 28 18 To the extent that petitioner seeks to present parallel independent substantive due process and equal protection claim s in Ground 3, these claim s, even if arguendo exhausted, are without m erit on both AEDPA and de novo review, for substantially the reasons outlined by the state suprem e court regarding the ineffective assistance claim . Petitioner presented no allegations tending to establish any such independent substantive violation. Petitioner’s claim under federal Ground 3 that counsel was ineffective for failing to object to alleged errors in the pre-sentence report does not appear to have been fairly presented to the state courts and exhausted. On de novo review, the claim in any event does not present a sufficiently specific and viable federal habeas claim under Rule 2 of the Rules Governing Section 2254 Cases. Merely alleging that counsel failed to object to unspecified errors in a pre-sentence report does not present a viable claim on federal habeas review. Petitioner alleged for the first tim e in the federal reply that the pre-sentence report contained erroneous inform ation because the report allegedly stated that W alker stated that his wife was the m asterm ind of the crim es. As discussed under Ground 1, petitioner cannot present unexhausted m aterial allegations seeking to support his claim s for the first tim e in the federal reply. The state court record in any event reflects that W alker addressed this very point with the state district court judge at sentencing. See #1813, Ex. L, at 7-8. On de novo review, petitioner cannot dem onstrate a constitutional violation in this regard, whether based upon alleged ineffective assistance of counsel, an alleged due process violation, or otherwise. -17- 1 status and coerced Petitioner through pleading guilty.” Finally, Walker alleges that “prior to 2 coercing Petitioner into a plea, [counsel should] have determined that the stacked allegations 3 were merely circumstantial, i.e., the ones he had coerced Petitioner into pleading guilty.”19 4 The evidence available to the State on the charges to which Walker pled guilty is 5 referenced above in the discussion of Grounds 1 and 2. The “stacked” and “merely 6 circumstantial” charges – i.e., the ones to which counsel allegedly coerced Walker into 7 entering a guilty plea – arose from three separate robberies on three different dates where 8 the three different victims each positively identified Walker as the individual who robbed them. 9 The express acknowledgments made by Walker in the written guilty plea agreement 10 and during the plea colloquy also are summarized above in the discussion of Ground 1. This 11 Court rarely is presented with a more comprehensive plea canvass in a state criminal case 12 than that conducted by the state district judge in this case. 13 In his state post-conviction petition, Walker’s allegations were even more vague and 14 generalized than those in the federal petition. Petitioner alleged only that “counsel coerced 15 his own client . . . to enter a plea of guilty and enter an invalid plea,” that “counsel was 16 ineffective by coercing petitioner to enter a guilty plea when counsel failed to investigate any 17 of petitioner’s claims and by not objecting to any of the claims made by the State,” and that 18 “his plea was not knowingly, intelligently nor voluntarily entered due to counsel’s coercive and 19 persuasive methods.” Walker did not identify in the state petition how counsel allegedly 20 “coerced” him into entering a plea. Nor did Walker make any specific allegations tending to 21 establish that counsel omitted any specific preparation step that reasonably probably would 22 have affected the outcome of the proceedings, i.e., by producing actual evidence or 23 developing a specific defense theory that, viewed objectively, would have prompted a 24 defendant in Walker’s situation to not plead guilty and instead proceed to trial on all charges. 25 Nor did Walker tender any supporting evidence in any way tending to actually establish any 26 coercion, lack of preparation, or resulting prejudice. #18-15, Ex. S, at 7A & 7C. 27 28 19 #6, at 11 to 11A. Ground 4 was dism issed following a holding that the ground was unexhausted. -18- 1 2 3 4 5 6 7 8 9 10 11 12 On state post-conviction review, the Supreme Court of Nevada rejected the claim presented in the state courts on the following grounds: . . . [A]ppellant claimed that his trial counsel coerced him into entering his guilty plea because trial counsel was unprepared to go to trial. Appellant further argued that this trial counsel used coercive methods. Appellant failed to demonstrate that his trial counsel was ineffective in this regard. Appellant acknowledged during the plea canvass that his plea was freely and voluntarily given. Appellant further acknowledged in the written guilty plea agreement that his plea was not the product of duress or coercion. Appellant failed to demonstrate that his trial counsel was unprepared to proceed to trial. Appellant failed to provide any specific facts or cogent argument in support of his claim that trial counsel’s methods were coercive. As discussed earlier, appellant benefited by entry of his plea, and appellant failed to demonstrate that he would not have entered the guilty plea absent the alleged deficient conduct of counsel. Therefore, we conclude that the district court did not err in denying this claim. #18-18, Ex. W, at 5. 13 The state supreme court’s rejection of this claim was neither contrary to nor an 14 unreasonable application of clearly established federal law as determined by the United 15 States Supreme Court. 16 In the Blackledge decision cited above in the discussion of Ground 1, the Supreme 17 Court held that the representations made at a plea hearing and the findings made by the 18 judge in accepting the plea “constitute a formidable barrier in subsequent collateral 19 proceedings,” that “[s]olemn declarations in open court carry a strong presumption of verity,” 20 and that the “subsequent presentation of conclusory allegations unsupported by specifics is 21 subject to summary dismissal.” 431 U.S. at 73-74, 97 S.Ct. at 1629. Under Blackledge, a 22 collateral attack that directly contradicts the responses at the plea proceedings “will entitle a 23 petitioner to an evidentiary hearing only in the most extraordinary circumstances.” Id. 24 Blackledge precludes a convicted felon from presenting just the sort of challenge to his 25 guilty plea that Walker presents here – conclusory and unsupported allegations that his 26 counsel was unprepared for trial in some unspecified fashion and that counsel therefore 27 “coerced” him in some also unspecified fashion into entering a plea. Such conclusory 28 allegations – which directly contradict the representations that Walker made when he pled -19- 1 guilty – clearly do not present the “most extraordinary circumstances” such as would entitle 2 a petitioner to an evidentiary hearing.20 3 4 5 6 The Nevada Supreme Court’s rejection of this claim thus clearly was neither contrary to nor an unreasonable application of clearly established federal law. Ground 5 therefore does not provide a basis for federal habeas relief.21 Ground 7: Effective Assistance – Alleged Failure to Advise of Appeal Right 7 In Ground 7, petitioner alleges that he was denied effective assistance of counsel, due 8 process, and equal protection when defense counsel allegedly failed to advise him of his right 9 to file a direct appeal and allowed him to waive his right to an appeal without explaining the 10 right to him. Petitioner further alleges that the provisions of N.R.S. 174.035 violate due 11 process because the statute allegedly allows the State to arbitrarily and capriciously deny one 12 defendant the right to an appeal while allowing others the same right. Petitioner alleges that 13 “[t]he plea agreement simply stated that Petitioner waived his right to a direct appeal, to 14 appeal pretrial rulings, with permission of the State and the court.” Petitioner maintains that 15 20 16 17 18 19 20 21 22 23 24 25 26 27 28 W alker asserted in the federal reply – in a general “statem ent of the case” – that he was “coerced” into accepting a plea because the State conditioned acceptance of a plea upon both co-defendants m aking a plea deal. He m aintains that concern for his wife was the sole reason that he entered a plea. #21, at 5-6. These allegations were not presented to the state courts in the corresponding claim in the state petition that was adjudicated by the Suprem e Court of Nevada. Nor were the allegations presented in Ground 5. The allegations further speak to coercion by the State rather than by defense counsel and further have nothing to do with defense counsel’s level of preparation. In all events, on de novo review, the alleged “coercion” of such an all-or-none condition by the State does not constitute unconstitutional coercion. 21 To the extent that petitioner seeks to present parallel independent substantive due process and equal protection claim s in Ground 5, these claim s, even if arguendo exhausted, are without m erit on both AEDPA and de novo review, for substantially the reasons outlined regarding the ineffective assistance claim . Petitioner presents additional allegations in federal Ground 5 that were not presented to the state courts, such as references to, e.g., “the volum e of allegations charged” and “the inconsistencies of police reports.” These additional allegations, however, in truth are not in substance m ore specific than the allegations m ade in the state courts. For exam ple, a generic reference only to an alleged failure to take into account unspecified “inconsistencies of police reports” does not allege any facts that would tend to establish that there was a reasonable probability that an alleged failure by counsel affected the outcom e of the proceedings. On both state and federal collateral review, the burden on petitioner is to affirm atively allege that counsel failed to pursue or develop specific identified inform ation that reasonably probably would have affected the outcom e of the proceedings. A vague reference only to unspecified inconsistencies in police reports – of unspecified nature, relevancy, and significance – fails to present a viable claim on either state or federal collateral review. Petitioner’s vague references to counsel taking advantage of som e unspecified “m ental status” sim ilarly fails to present a viable claim on habeas review, particularly under Blackledge. -20- 1 the State, the state court, and defense counsel took advantage of his unspecified “mental 2 status.”22 3 Walker’s allegations regarding what was stated in the plea agreement and what 4 occurred prior to the plea are directly belied and contradicted by the plea agreement itself, 5 which stated: 6 WAIVER OF RIGHTS 7 By entering my plea of guilty, I understand that I am waiving and forever giving up the following rights and privileges: 8 ..... 9 12 6. The right to appeal the conviction, with the assistance of an attorney, either appointed or retained, unless the appeal is based upon reasonable constitutional jurisdictional or other grounds that challenge the legality of the proceedings and except as otherwise provided in subsection 3 of NRS 174.035. 13 VOLUNTARINESS OF PLEA 14 ..... 15 16 All of the foregoing elements, consequences, rights, and waivers of rights have been thoroughly explained to me by my attorney. 17 ..... 18 My attorney has answered all my questions regarding this guilty plea agreement and its consequences to my satisfaction and I am satisfied with the services provided by my attorney. 10 11 19 20 #18-11, Ex. J., at 3-5. 21 At the plea colloquy, Walker expressly acknowledged, inter alia, that he understood 22 that he was giving up the constitutional rights listed in the guilty plea agreement, that he had 23 discussed the case with his attorney prior to signing the guilty plea memorandum, and that 24 his attorney had answered all of his questions.23 25 //// 26 27 22 #6, at 15 to 15B. Ground 6 was dism issed following a holding that the ground was unexhausted. 28 23 #18-12, Ex. K, at 9-11. -21- 1 Walker’s state post-conviction petition alleged in this regard only that “counsel failed 2 to tell petitioner that he had a right to file a(n) [sic] direct appeal on a guilty plea” and that 3 “counsel’s failure to inform him of his right to appeal was prejudicial that caused [sic] petitioner 4 a chance to show just cause as to why his sentence was illegal at the time of sentencing.”24 5 Walker made no other allegations regarding the right to appeal in his state petition. 6 7 The Supreme Court of Nevada rejected the claim presented in the state courts on the following grounds: . . . [A]ppellant claimed that his trial counsel failed to inform him of his right to a direct appeal. Appellant failed to demonstrate that his trial counsel was ineffective in this regard. The written guilty plea agreement informed appellant of his limited right to appeal the conviction. Further, this court has held that “there is no constitutional requirement that counsel must always inform a defendant who pleads guilty of the right to pursue a direct appeal” absent extraordinary circumstances. Appellant failed to demonstrate any such extraordinary circumstances in this case. Therefore, we conclude that the district court did not err in denying this claim. 8 9 10 11 12 13 14 #18-18, Ex. W, at 6 (citation footnotes omitted). 15 The state supreme court’s rejection of the claim presented in the state courts was 16 neither contrary to nor an unreasonable application of clearly established federal law as 17 determined by the United States Supreme Court. 18 representations made at a plea hearing and the findings made by the judge in accepting the 19 plea “constitute a formidable barrier in subsequent collateral proceedings;” “[s]olemn 20 declarations in open court carry a strong presumption of verity;” and the “subsequent 21 presentation of conclusory allegations unsupported by specifics is subject to summary 22 dismissal.” Blackledge, 431 U.S. at 73-74, 97 S.Ct. at 1629. A collateral attack that directly 23 contradicts the responses at the plea proceedings “will entitle a petitioner to an evidentiary 24 hearing only in the most extraordinary circumstances.” Id. Walker’s allegation that the direct 25 appeal right that he clearly was waiving under the plea agreement was not explained to him 26 is directly belied by his acknowledgments in the plea agreement and colloquy. This case 27 28 24 #18-15, Ex. S, at 7-C. -22- Under well-established law, the 1 does not present the “most extraordinary circumstances” such as would entitle a petitioner 2 to an evidentiary hearing. 3 4 The Nevada Supreme Court’s rejection of this claim thus clearly was neither contrary to nor an unreasonable application of clearly established federal law. 5 Walker’s remaining claims in the federal petition in Ground 7 were not exhausted. 6 Petitioner presented no other claim to the state courts in this regard other than the claim 7 counsel failed to inform him that he had a right to file a direct appeal, a claim which essentially 8 was belied by the plea agreement and plea colloquy. 9 10 The remaining claims in Ground 7 in the federal petition in any event are wholly without merit on de novo review. 11 Petitioner’s due process claim is based, first, upon a misrepresentation of the record 12 and, second, upon a completely flawed legal argument. Petitioner alleges that “[t]he plea 13 agreement simply stated that Petitioner waived his right to a direct appeal, to appeal pretrial 14 rulings, with permission of the State and the court.” From this factual premise, he urges that 15 the plea agreement and N.R.S. 174.035 violate due process because the State allegedly may 16 arbitrarily and capriciously deny one defendant permission to appeal and allow others the 17 same right. 18 The factual premise of course is based upon a misrepresentation of the record. The 19 plea agreement did not state that petitioner could appeal only with the permission of the State 20 and the court. The plea agreement instead reflected that petitioner could appeal “based upon 21 reasonable constitutional jurisdictional or other grounds that challenge the legality of the 22 proceedings and except as otherwise provided in subsection 3 of NRS 174.035.” 23 24 25 26 27 Petitioner’s legal argument further is fundamentally flawed. Walker’s argument at bottom is based upon N.R.S. 174.035(3), which provides: With the consent of the court and the district attorney, a defendant may enter a conditional plea of guilty, guilty but mentally ill or nolo contendere, reserving in writing the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal must be allowed to withdraw the plea. 28 -23- 1 This provision has nothing to do with Walker’s case. He did not enter a conditional plea 2 reserving the right to appeal an adverse determination of a specified pretrial motion. N.R.S. 3 174.035(3) thus has nothing to do with his case, and he therefore would not have standing 4 to raise any such due process issue with regard to the statute. Similar to his argument under 5 Blakely and Apprendi under Ground 1, petitioner again has presented a legal argument that 6 in truth has no application to his case. 7 Petitioner similarly does not present a viable equal protection claim in this context, and 8 his conclusory and unexhausted reference to an unspecified “mental status” fails to present 9 a sufficiently specific claim under Blackledge and Rule 2 of the Rules Governing Section 2254 10 11 Cases. Ground 7 therefore does not provide a basis for federal habeas relief.25 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 25 In his reply, petitioner sought to assert an entirely distinct claim that was not fairly presented in either the federal petition or in the state courts. W alker asserted: “Petitioner’s counsel knew that Petitioner was dissatisfied with the Court proceedings and wanted to appeal but, after the Court im posed sentence, counsel quickly exited the courtroom and had no further com m unications with the Petitioner.” #21, at 18. A claim that counsel failed to consult with a defendant about an appeal when counsel allegedly knew that the defendant wanted to appeal is a distinct and different claim from a claim that counsel filed to inform the defendant that he had a right to appeal. Indeed the two different claim s tend to be inherently inconsistent with one another. In the one claim , a petitioner is alleging that he did not know that he had a right to appeal because counsel did not tell him that he had such a right. In the other claim , a petitioner necessarily is alleging not only that he knew that he had a right to appeal but that he conveyed a desire to counsel that he file an appeal. Petitioner did not fairly present the latter – and inconsistent – claim in the state courts, and he presented no such claim in Ground 7 of the federal petition. As noted as to Ground 1, under Rule 15 of the Federal Rules of Civil Procedure, the procedure for presenting new claim s and allegations after the respondents have answered is by seeking leave to am end, not by inserting new claim s for the first tim e in the federal reply, particularly claim s resting on an factual and legal basis that is inherently inconsistent with the allegations of the original petition. Petitioner never sought leave to am end. The allegations therefore are disregarded. The Court additionally notes that W alker bases his claim of prejudice vis-à-vis a direct appeal on the contention that he was denied the opportunity to present his argum ents under Blakely and Apprendi and to thereby argue that the sentence im posed constituted cruel and unusual punishm ent in violation of the Eighth Am endm ent. #21, at 19. Petitioner’s Blakely and Apprendi argum ents, however, are fundam entally flawed both legally and factually, and the argum ents in truth are frivolous as applied to this case. Petitioner therefore would not be able to establish prejudice on such a basis. 27 Petitioner’s reliance upon federal appellate decisions regarding the waiver of the direct appeal right in federal crim inal cases is m isplaced. Federal crim inal trials are governed by different procedural rules, and such rules are not necessarily m andated by the Constitution as opposed to the Federal Rules of Crim inal 28 (continued...) -24- 1 Looking at the petition as a whole, a substantial portion of the petitioner’s claims are 2 premised upon factual assertions – such as his allegation that he never admitted using a 3 weapon – that are directly belied by the state court record and legal arguments that in truth 4 have no application to his case. Petitioner clearly has failed to demonstrate either that his 5 guilty plea was not knowing, intelligent, or voluntary or that his conviction pursuant to his guilty 6 plea otherwise violates the Constitution.26 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 25 (...continued) Procedure. Moreover, with regard to the exhausted claim , petitioner m ust show that the Nevada Suprem e Court’s decision was either contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court, not federal appellate decisions. Petitioner further provides extensive argum ent in the reply regarding the alleged inadequacy of the Nevada state Lozada rem edy for the deprivation of a right to a direct appeal. #21, at 24-26. The Suprem e Court of Nevada did not order a Lozada rem edy, however. The state high court instead held that petitioner had not presented a viable claim that counsel was ineffective for allegedly failing to inform him of his right to take a direct appeal. 26 In his reply, petitioner scattered a num ber of additional claim s that were not alleged in the federal petition across m ore general sections of the reply, including the statem ent of the case and a section on the governing standard of review. These additional claim s included claim s: (1) that petitioner was denied effective assistance of counsel, due process, and rights under the Fourth Am endm ent when he allegedly was not prom ptly taken before a m agistrate for a probable cause determ ination following his allegedly warrantless arrest and when counsel failed to file a m otion to dism iss on this basis (#21, at 3); (2) that trial counsel was ineffective for failing to m ove for a lesser-included offense or drug treatm ent counseling (#21, at 14); (3) that trial counsel was ineffective for failing to object to the State’s use of the pre-sentence report as proof of his crim inal history (id.); and (4) that the state district court abused its discretion in relying on the pre-sentence report (id.). As noted as to Ground 1, under Rule 15 of the Federal Rules of Civil Procedure, the procedure for presenting new claim s and allegations after the respondents have answered is by seeking leave to am end, not by inserting new claim s for the first tim e in the federal reply. Petitioner never sought leave to am end. The claim s therefore are disregarded. The first claim identified above further is com pletely unexhausted. Any independent substantive preplea claim asserted therein additionally is barred under Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The second, third, and fourth claim s further lack any arguable m erit. On the second claim above, there was no realistic probability that a “m otion for lesser-included offenses” and/or for drug treatm ent counseling would have altered the outcom e of the proceedings. W alker was charged with, and pled guilty to, serious crim inal offenses. There was not reasonably probability that a m otion to “reduce the charges” and/or for drug treatm ent would have in any way altered the outcom e of the proceedings or avoided petitioner being sentenced to the prison tim e that he received. 28 (continued...) -25- 1 IT THEREFORE IS ORDERED that the remaining claims in the petition for a writ of 2 habeas corpus shall be DENIED on the merits and that this action shall be DISMISSED with 3 prejudice. 4 5 The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice. DATED: August 31, 2009. 6 7 8 ________________________________ HOWARD D. MCKIBBEN United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (...continued) On the third and fourth claim s, petitioner’s assum ption sim ilarly is com pletely flawed that there was som e legal im propriety in the sentencing court relying upon a pre-sentence report for, inter alia, a statem ent of the defendant’s past crim inal history. Petitioner has not identified any specific inform ation in the presentence report that was incorrect as to his past crim inal history. 26 27 28 Petitioner additionally asserts that his failures to exhaust claim s and to properly present viable claim s in the state and federal courts should be excused because he was not appointed counsel. Petitioner has no right under the Sixth Am endm ent to appointed counsel in state or federal post-conviction proceedings. His lay status does not excuse a failure to exhaust claim s and/or to present viable claim s. -26-
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