Griffin v. Benedetti et al, No. 3:2007cv00525 - Document 41 (D. Nev. 2011)

Court Description: ORDER DISMISSING CASE. IT IS HEREBY ORDERED that the petition for a writ of habeas corpus shall be DENIED and that this action shall be DISMISSED with prejudice on the merits. FURTHER ORDERED, a certificate of appealability is DENIED. FURTHER ORDERED, the Clerk shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice. Signed by Judge Howard D. McKibben on 3/30/2011. (Copies have been distributed pursuant to the NEF - KO)

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Griffin v. Benedetti et al Doc. 41 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 SAMUEL GRIFFIN, 9 Petitioner, 3:07-cv-00525-HDM-VPC 10 vs. ORDER 11 12 JAMES BENEDETTI, et al., 13 Respondents. 14 15 16 17 This habeas matter under 28 U.S.C. § 2254 comes before the Court for a final decision on the claims presented. Background 18 Petitioner Samuel Griffin seeks to set aside his 2002 Nevada state conviction, pursuant 19 to a guilty plea, of armed robbery. On federal habeas review, the Court’s scheduling order 20 directed respondents to present any remaining procedural defenses to the amended petition 21 together with their response to the merits. In their answer, in addition to responding to the 22 merits, respondents contend: (a) that the equal protection claim in Ground 1-6 is not 23 exhausted; and (b) that the claims in Grounds 1-1, 1-3, 1-5 and 1-6 lack the required 24 specificity and should be summarily dismissed. 25 Procedural Defenses 26 The equal protection claim in Ground 1-6 is not exhausted. 27 Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust state court 28 remedies on a claim before presenting that claim to the federal courts. To satisfy this Dockets.Justia.com 1 exhaustion requirement, the claim must have been fairly presented to the state courts 2 completely through to the highest court available, in this case the state supreme court. E.g., 3 Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329 F.3d 4 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal 5 constitutional guarantee and must also state the facts that entitle the petitioner to relief on the 6 federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). That 7 is, fair presentation requires that the petitioner present the state courts with both the operative 8 facts and the federal legal theory upon which the claim is based. E.g., Castillo v. McFadden, 9 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement insures that the state courts, 10 as a matter of federal-state comity, will have the first opportunity to pass upon and correct 11 alleged violations of federal constitutional guarantees. See,e.g., Coleman v. Thompson, 501 12 U.S. 722, 731, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). 13 Under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), a mixed 14 petition presenting both exhausted and unexhausted claims must be dismissed without 15 prejudice unless the petitioner dismisses the unexhausted claims or seeks other appropriate 16 relief. 17 In Ground 1-6, petitioner alleges that defense counsel failed to advise and/or consult 18 with him regarding his direct appeal rights. He alleges that he learned of his direct appeal 19 rights from other inmates and filed a pro se notice of appeal. Petitioner alleges that he was 20 denied rights to equal protection, due process and effective assistance of counsel in violation 21 of the Sixth and Fourteenth Amendments.1 22 No equal protection claim in this regard was presented to the Supreme Court of 23 Nevada on the state post-conviction appeal. Petitioner presented a claim arising on these 24 facts based upon a denial of only a right to effective assistance of counsel.2 In the federal 25 reply, petitioner urges – without addressing the equal protection claim separately – that 26 27 1 #32, at electronic docketing page 7. 28 2 #22, Ex. 83, at 11 (fast track statem ent). -2- 1 Ground 1-6 was fairly presented to the state courts because the claim was presented to the 2 state district court and the state supreme court “on the same factual basis.”3 However, it is 3 established law that petitioner must present the state courts with both the operative facts and 4 the federal legal theory upon which his claim is based. Castillo, supra. Petitioner did not do 5 so as to the equal protection legal theory in Ground 1-6. 6 The equal protection claim in Ground 1-6 thus is not exhausted. 7 Further proceedings under Rose v. Lundy as to this claim are not warranted, however. 8 The Court may dismiss an unexhausted claim on the merits pursuant to 28 U.S.C. § 9 2254(b)(2). The equal protection legal theory plainly is meritless on its face. Not all allegedly 10 unequal or dissimilar treatment of individuals gives rise to an equal protection violation, 11 particularly in situations where other constitutional provisions instead are applicable. 12 See,e.g., Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). Alleged ineffective assistance 13 of counsel in allegedly failing to consult with a defendant about appeal rights does not give 14 rise to an equal protection violation. 15 The equal protection claim in Ground 1-6 therefore will be dismissed on the merits. 16 On their other procedural defense, respondents contend that Grounds 1-1, 1-3, 1-5 17 and 1-6 lack the specificity required by habeas pleading rules. However, even assuming, 18 arguendo, that respondents are correct, it appears that these claims were exhausted and 19 rejected by the state courts on the merits on the arguments and record presented in those 20 courts. The more efficient and determinative resolution4 of the claims therefore would be to 21 address the issue of whether the state courts’ rejection of the same claims was contrary to 22 or an unreasonable application of clearly established federal law. 23 The Court accordingly turns to the merits of the exhausted claims. 24 25 26 27 28 3 #38, at 5. Petitioner also states in note 3 on the preceding page of the reply that he abandons as redundant a statem ent regarding “a denial of his rights to equal protection and due process.” Id., at 4 n.3. It is not entirely clear to what petitioner is referring, either as to the specific language in question or as to the specific action that he is purporting to take. The Court has proceeded on the basis that petitioner contests the exhaustion issue as to this claim , given that he provides opposition argum ent on the issue. 4 The Court generally does not dism iss deficiently-pled claim s without an opportunity to am end. -3- Standard of Review on the Merits 1 2 The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a “highly 3 deferential standard for evaluating state-court rulings.” Lindh v. Murphy, 521 U.S. 320, 333 4 n.7, 117 S.Ct. 2059, 2066 n.7, 138 L.Ed.2d 481(1997). Under this deferential standard of 5 review, a federal court may not grant habeas relief merely on the basis that a state court 6 decision was incorrect or erroneous. E.g., Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 7 2003). Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the decision: (1) 8 was either contrary to or involved an unreasonable application of clearly established law as 9 determined by the United States Supreme Court; or (2) was based on an unreasonable 10 determination of the facts in light of the evidence presented at the state court proceeding. 11 E.g., Mitchell v. Esparza, 540 U.S. 12, 15, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003). 12 A state court decision is “contrary to” law clearly established by the Supreme Court only 13 if it applies a rule that contradicts the governing law set forth in Supreme Court case law or 14 if the decision confronts a set of facts that are materially indistinguishable from a Supreme 15 Court decision and nevertheless arrives at a different result. E.g., Mitchell, 540 U.S. at 15-16, 16 124 S.Ct. at 10. A state court decision is not contrary to established federal law merely 17 because it does not cite the Supreme Court’s opinions. Id. Indeed, the Supreme Court has 18 held that a state court need not even be aware of its precedents, so long as neither the 19 reasoning nor the result of its decision contradicts them. Id. Moreover, “[a] federal court may 20 not overrule a state court for simply holding a view different from its own, when the precedent 21 from [the Supreme] Court is, at best, ambiguous.” Mitchell, 540 U.S. at 16, 124 S.Ct. at 11. 22 For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme 23 Court precedent is not contrary to clearly established federal law. 24 A state district court decision constitutes an “unreasonable application” of clearly 25 established federal law only if it is demonstrated that the state court’s application of Supreme 26 Court precedent to the facts of the case was not only incorrect but “objectively unreasonable.” 27 E.g., Mitchell, 540 U.S. at 18, 124 S.Ct. at 12; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 28 2004). -4- 1 To the extent that the state court’s factual findings are challenged intrinsically based 2 upon evidence in the state court record, the “unreasonable determination of fact” clause of 3 Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 4 943, 972 (9th Cir. 2004). This clause requires that the federal courts “must be particularly 5 deferential” to state court factual determinations. Id. The governing standard is not satisfied 6 by a showing merely that the state court finding was “clearly erroneous.” 393 F.3d at 973. 7 Rather, the AEDPA requires substantially more deference: 8 9 10 11 . . . . [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. 12 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972. 13 If the state court factual findings withstand intrinsic review under this deferential 14 standard, they then are clothed in a presumption of correctness under 28 U.S.C. § 2254(e)(1); 15 and they may be overturned based on new evidence offered for the first time in federal court, 16 if other procedural prerequisites are met, only on clear and convincing proof. 393 F.3d at 972. 17 The petitioner bears the burden of proving by a preponderance of the evidence that he 18 is entitled to habeas relief. Davis, 384 F.3d at 638. 19 20 Governing Substantive Law The Supreme Court decisions in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 21 L.Ed.2d 235 (1973), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), 22 sharply curtail the possible grounds available for challenging a conviction entered following a 23 guilty plea. As the Court stated in Tollett: 24 25 26 27 28 . . . . [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 counsel was not within the [constitutional] standards [established for effective assistance of counsel.] 411 U.S. at 267, 93 S.Ct. at 1608. Accordingly, “while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief.” Id. In Hill, the Court held that the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges to guilty pleas based on alleged ineffective assistance of counsel. 474 U.S. at 58, 106 S.Ct. at 370. Accordingly, a petitioner seeking to set aside a guilty plea due to ineffective assistance of counsel must demonstrate: (1) that his counsel’s performance fell below an objective standard of reasonableness; and (2) that the defective performance resulted in actual prejudice. 474 U.S. at 58-59, 106 S.Ct. at 370. On the performance prong, the question is not what counsel might have done differently but rather is whether counsel’s decisions were reasonable from counsel’s perspective at the time. In this regard, the reviewing court starts from a strong presumption that counsel’s conduct fell within the wide range of reasonable conduct. E.g., Beardslee v. Woodford, 358 F.3d 560, 569 (9th Cir. 2004). On the prejudice prong, as a general matter under Strickland, the petitioner must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee, 358 F.3d at 569. Application of this general principle to the specific context of a guilty plea leads to the requirement that the petitioner “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 370. Under Hill, a challenge to the voluntariness of a guilty plea potentially may be based upon a claim of ineffective of assistance of counsel in proceedings prior to the plea. As the Court observed: . . . . For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, -6- the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. . . . . As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker." Id., 466 U.S., at 695, 104 S.Ct., at 2068. 1 2 3 4 5 6 7 8 9 474 U.S. at 59-60, 106 S.Ct. at 370-71. Thus, an attorney’s unprofessional error in failing to 10 develop a meritorious defense may serve as a basis for overturning a guilty plea and 11 conviction only if, viewed objectively, there is a reasonable probability that, but for the error, 12 the petitioner would not have pled guilty and would have insisted on going to trial. Discussion 13 14 15 Ground 1-1 In Ground 1-1, petitioner alleges that he was denied effective assistance of counsel 16 because counsel did not file a motion, allegedly as directed by the state district court, to hold 17 the State to a prior unconsummated plea agreement. Petitioner maintains that the State was 18 attempting to pressure him into pleading guilty in another case, No. CR02-1201, to a crime that 19 he allegedly did not commit. He alleges that, when he refused to do so, the State withdrew 20 from the first agreement and instead presented a proposed plea agreement that had three 21 times as much sentencing exposure. Griffin maintains that counsel should have zealously 22 fought against the State’s “transparent attempt to coerce Griffin (successfully) into entering the 23 second plea agreement.”5 24 In April 2002, Griffin was on parole on a prior armed robbery conviction. He had two 25 prior convictions from the early 1990's, a conviction for robbery and another for armed robbery. 26 It appears from the record and Griffin’s own acknowledgments at the sentencing on 27 28 5 #32, at electronic docketing pages 3-4. -7- 1 the present conviction that he was out on parole on the armed robbery conviction in April 2 2002.6 3 The declaration in support of the arrest report reflects that petitioner would have faced, 4 inter alia, evidence corresponding to the following had he gone to trial.7 5 On April 6, 2002, a black male entered a convenience store at 501 W. 4th Street in 6 Reno, Nevada. The male ultimately pulled a handgun and demanded that the store clerk give 7 him the money from the register. A struggle ensued, during which the male grabbed and 8 pulled off a necklace that the clerk was wearing. The male also pulled the trigger five times, 9 but the gun did not discharge. The robber left the store with the necklace. 10 On April 11, 2002, Helen Jones was in the 4th Street store. The clerk recognized the 11 necklace that she was wearing as the one that had been taken from him in the robbery. Jones 12 told the police that the necklace had been a present from a man who they identified as Eric 13 Norman. The police lost track of Norman before they could question him. 14 15 6 16 7 17 18 19 20 21 22 23 24 25 26 #21, Ex. 24, at 19, 26, 27-29 & 36-38; see also #22, Ex. 66, at 17-19. #21, Ex. 2. W hen a defendant enters a plea prior to trial, there of course is no trial record reflecting the evidence that the State would have presented at trial and any evidence that the defense m ight have presented. The only indicia of the evidence that the State potentially would have presented at trial absent a plea generally are arrest reports and any prelim inary exam ination testim ony. In sum m arizing factual assertions m ade in the state court record, the Court m akes no credibility determ ination as to the veracity of any declarant or witness or any factual finding as to the truth or falsity of any factual assertions. In this instance, the Court sum m arizes the factual assertions solely as an indication of the evidence that would have been available to the State had the m atter gone to trial. The evidence that the State likely would have presented at trial is relevant to the determ ination of whether, but for the alleged error of counsel, there is a reasonable probability that a defendant in the petitioner’s situation would not have pled guilty and instead would have insisted on going to trial. See Hill, 474 U.S. at 59, 106 S.Ct. at 370. To be sure, petitioners on habeas review often m aintain that they did not com m it a crim e. In this case, Griffin adm its that he com m itted the second arm ed robbery on April 14, 2002, but he adam antly m aintains that he did not com m it the April 6, 2002, arm ed robbery. Be that as it m ay, absent a plea deal, he was going to trial on, inter alia, the April 6, 2002, arm ed robbery. Griffin’s disagreem ent with the State’s evidence on the April 6, 2002, arm ed robbery would not have prevented the case from going to trial and would not have prevented the State from presenting its evidence. At trial, it would have been in the province of the jury to either disbelieve – or believe – the State’s evidence. That is the situation that Griffin faced prior to the plea. 27 28 The Court m akes no factual findings regarding the truth or falsity of any evidence in sum m arizing any factual assertions in the state court record. -8- 1 On April 14, 2002, Griffin entered a convenience store at 1445 E. 6th Street in Reno. He 2 pulled a knife and demanded that the store clerk give him the money from the register. The 3 clerk complied, and Griffin left the store. Griffin was followed to a nearby motel, arrested by 4 the police, and positively identified as the robber by the store clerk. Griffin does not deny that 5 he committed this April 14, 2002, armed robbery -- in which he was tracked fleeing from the 6 store directly to the motel where he was arrested and immediately positively identified. 7 On April 16, 2002, Griffin was charged with the April 14, 2002, 6th Street store armed 8 robbery. On May 1, 2002, he signed a waiver of the preliminary examination. Handwriting on 9 the bottom of the waiver noted: “Def to plead to Armed Robbery[,] State will recommend 2410 60 months on charge then 24-60 months on enhancement – (4-10) years.”8 11 According to the investigating officer, after the April 14, 2002, 6th Street robbery, he 12 began comparing the surveillance tapes from the two robberies due to similarities between 13 them. The clothing appeared to be the same in each crime. According to the officer, he then 14 presented a photo lineup to the 4th Street store clerk from the April 6, 2002, armed robbery. 15 According to the officer’s report, the clerk selected Griffin’s picture “but he could only initially 16 say it was a strong possibility as he had focused a great deal of his attention on the gun.” 17 According to the report, the clerk began feeling more certain that Griffin was the robber after 18 viewing the images from the April 6, 2002, surveillance video. When the officer showed the 19 clerk images from the April 14, 2002, robbery at the 6th Street store, the 4th Street store clerk 20 immediately identified the clothing as the same that had been worn by the robber of his store. 21 The 4th Street store clerk then “was even more certain” that Griffin was the robber at his store.9 22 On May 2, 2002, the police were able to locate and question Eric Norman. According 23 to the arrest report, Norman identified Griffin from a photo lineup as the man who sold him the 24 necklace that he had given to Jones. #21, Ex. 2. 25 //// 26 27 8 #21, Exhs. 1 & 4. 28 9 #21, Ex. 2. -9- 1 On May 6, 2002, Griffin was charged by criminal complaint with the April 6, 2002, 4th 2 Street store armed robbery.10 3 On July 24, 2002, the case based upon the April 6, 2002, 4th Street store robbery came 4 on for a preliminary examination. The store clerk, Ramiro Palacios, testified as follows. 5 Palacios positively identified Griffin in his testimony as the robber at the 4th Street store. 6 Palacios testified that Griffin came into the store, ultimately pulled a handgun, and told 7 Palacios to give him the money in the cash register. When Palacios did not comply quickly 8 enough, Griffin grabbed Palacios near the neck. As they separated, Griffin pulled Palacios’ 9 chain from around his neck and hit Palacios in the head with the butt of the handgun. 10 According to Palacios, Griffin then said “I going to kill you now,” and he pulled the trigger but 11 the gun did not discharge. Palacios grabbed a bat and chased Griffin out of the store, with 12 Griffin pulling the trigger several times more in an attempt to shoot Palacios.11 13 Palacios testified further regarding the woman coming into the store the next day 14 wearing his chain. According to Palacios’ testimony, he subsequently picked Griffin out of a 15 photo lineup.12 16 The two cases were carried over to the state district court. The charges on the April 6, 17 2002, 4th Street store armed robbery were carried over in No. CR02-1201. The charges on 18 the April 14, 2002, 6th Street store armed robbery were carried over in No. CR02-1040. 19 On August 7, 2002, the two cases came on for a previously scheduled proceeding. 20 Defense counsel advised that, following negotiations, Griffin had anticipated pleading guilty 21 in No. CR02-1040, but “the State wishe[d] to withdraw from the negotiations and the 22 negotiated agreement.” He stated: “We would be opposed to that.” #21, Ex. 21, at 3-4. 23 24 25 26 27 28 10 #21, Ex. 1. 11 #21, Ex. 15, at 4-24. Petitioner m ade it known during the prelim inary exam ination that he disagreed with Palacios’ testim ony. Id., at 17-18 & 34. Griffin’s disagreem ent, however, would not have prevented the State from going forward with the case and would not have necessarily prevented a jury from believing the witness. The Court, again, m akes no factual finding as to the truth or falsity of this, or any other, evidence. 12 Id., at 25-31. -10- 1 The prosecutor responded: What would happen, Your Honor, is that the defendant committed two robberies; two armed robberies, as a matter of fact. And there were negotiations on the first case. And when the defendant was arrested on the second case, we tried to package these cases. We were unable to do so, and so negotiations have fallen through. There was no meeting of the minds. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 #21, Ex. 21, at 4. Defense counsel advised the state district court that Griffin wanted to address the court directly. He stated that “my client wishes to address the fact that he does not feel the State can withdraw from the negotiations.” The court responded: “That’s fine. Go ahead. File the motion. I think they can.” The court then proceeded forward to set No. CR02-1201-- the April 6, 2002, 4th Street store armed robbery -- for trial and to remand No. CR02-1040 -- the April 14, 2002, 6th Street store armed robbery -- back to the justice court.13 The transcript then reflects a recess in the proceeding. Thereafter, as a continuation of the same proceeding the same day, Griffin entered the plea in No. CR02-1040 as to the 6th Street store robbery upon which the conviction under attack is based, pursuant to an overall plea deal in which the State agreed to dismiss No. CR02-1201 at sentencing.14 Griffin, who had been present throughout, made no request that the state district court first entertain and rule on a motion regarding the State’s withdrawal from the prior negotiations before he entered the plea. He instead responded that he did not have any questions about the negotiations, that he had had enough time to discuss the entire matter with counsel, that he was satisfied with the legal services provided by counsel, that he understood that he did not have to change his plea, that no promises outside of the plea agreement had been made to him to induce him to change his plea, that no threats had been made against him to get him to change his plea, that he was changing his plea freely and voluntarily, that he was pleading guilty because he was guilty and for no other reason, that the State was free to argue for the 25 26 27 13 #21, Ex. 21, at 4-6. 28 14 Id., at 6-7. -11- 1 maximum penalty, that the court did not have to follow any negotiations, and that his 2 sentencing exposure was consecutive sentences of two to fifteen years on the robbery and 3 weapon enhancement, consecutive to the sentence that he then was serving.15 4 The state district court accepted the plea, under which the charges as to the 4th Street 5 store robbery in No. CR02-1201 would be dismissed at sentencing.16 6 On October 22, 2002, the matter came on for sentencing. 7 With Griffin present, defense counsel noted that the negotiations included, inter alia, 8 the dismissal of No. CR02-1201. Referring back to the day of the plea, he noted that the case 9 had been before the court on a motion to confirm the trial date, but a plea deal had been 10 reached after further negotiations in the hall after the proceeding was recessed. Counsel 11 stated that the guilty plea memorandum and colloquy both were done correctly and “[t]hat’s 12 what my client understands the negotiations to be.”17 13 Counsel continued, however, that one of the draft guilty-plea memoranda in the prior 14 negotiations erroneously had stated that probation was an option. He stated that he had 15 discussed the matter with Griffin and that he had “explained to him that if he made this deal 16 with the thought that probation was an option, that he would have grounds to withdraw his 17 guilty plea in my opinion.” Counsel informed the court: 18 He informs me that he does not wish to withdraw his guilty plea to this case; that he made this negotiation knowing that – Whether he knew or not that probation was an option I am not sure; however, he knew that prison was likely based upon his record. And that at this point he does not wish to withdraw his guilty plea. He does not want to create waves for the Court. 19 20 21 He knows that probation is not an option pursuant to the guilty-plea memoranda actually filed with the Court, notwithstanding what he had reviewed in a prior guilty-plea memoranda [sic] where it stated that it was an option. 22 23 24 25 26 15 #21, Ex. 21, at 7-12. See also id., Ex. 22 (acknowledgm ents in written guilty plea agreem ent). 27 16 Id., at 12. 28 17 #21, Ex. 24, at 3-4. -12- So I’ve discussed that with my client. He understands that these are the negotiations; that probation is not an option; and that the State is free to argue. 1 2 3 #21, Ex. 24, at 5-6. 4 The court asked Griffin whether he understood that, and he responded: “Yes, sir.”18 5 Petitioner did not seek to withdraw the plea – on any ground – prior to sentencing, even 6 after the prospect of withdrawing the plea was clearly and expressly raised on the record. 7 Defense counsel, in his argument as to sentencing, observed that prior negotiations had 8 contemplated two consecutive 24 to 60 month sentences on the April 14, 2002, robbery and 9 weapon enhancement in No. CR02-1040 along with two consecutive 24 to 60 month 10 sentences on the April 6, 2002, robbery and weapon enhancement in No. CR02-1201. 11 Counsel stated: That was for both cases. In this case – and I remember discussing this with my client for an extended period of time – that free to argue leaves the State free to argue. My client pled guilty to this case because he did the case. He did not wish to take any deals or negotiate any cases with any other case because he did not do those other cases. He did not do the CR02-1201. He did not want to take any deals on that, did not want to discuss that. He had pled guilty to this case, CR02-1040, because in his mind he was guilty of this. 12 13 14 15 16 17 #21, Ex. 24, at 7-8. 18 Griffin and Griffin’s wife similarly admitted on the record that he committed the April 14, 19 2002, robbery. The defense sought to attribute the robbery – and his prior robberies over the 20 years – to his being unable to stay clear of drugs.19 21 Griffin maintained that he did not do the April 6, 2002, robbery. Defense counsel 22 pointed out that the prosecutor correctly stated that Palacios had identified Griffin at the 23 preliminary examination and that Griffin was referring to a police report where “one of the 24 witnesses pointed out somebody else” as the robber. #21, Ex. 24, at 30-35 & 38-39. 25 //// 26 27 18 #21, Ex. 24, at 6; see also id., at 27-29. 28 19 #21, Ex. 24, at 11 & 30. -13- 1 The state district court sentenced Griffin to two consecutive sentences of 24 to 180 2 months each, consecutive to his remaining time following upon his parole revocation.20 3 The same state district judge that took Griffin’s plea considered his state post-conviction 4 petition. The judge rejected the corresponding ineffective assistance claim presented in the 5 state courts on the following grounds: Petitioner claims ineffective assistance of counsel, alleging his attorney failed to file a motion to enforce a previous plea agreement between the State and Petitioner. The State argues that this . . . claim should . . . be dismissed because under [sic] the State is free to withdraw from a plea agreement until it is performed or until the defendant detrimentally relies on it. State v. Crockett, 110 Nev. 838, 877 P.2d 1077 (1994). The State also contends that Petitioner brings forth no specific factual allegations that he detrimentally relied on the plea agreement prior to its execution. This Court finds that the State was able to withdraw its first plea agreement and that it invited Petitioner to file a motion on the issue stating otherwise. The Court never ordered Petitioner or his attorney to respond with a written motion. This Court finds that Petitioner has failed to present any facts that if true would entitle him to relief. Therefore, Petitioner’s claim as to counsel’s failure to file a motion to force the State to specifically perform on its first plea agreement is dismissed. 6 7 8 9 10 11 12 13 14 15 #22, Ex. 61, at 3. 16 The Supreme Court of Nevada affirmed the state district court’s decision as to this claim 17 on the grounds that petitioner had not demonstrated that the district court’s findings were not 18 supported by substantial evidence or were clearly wrong and that he had not demonstrated 19 that the lower court erred as a matter of law.21 20 Petitioner has not carried his burden of demonstrating that the state courts’ rejection 21 of Ground 1-1 was contrary to or an unreasonable application of clearly established federal 22 law. Petitioner did not even respond in the reply on this claim, responding only as to Ground 23 1-6. 24 Petitioner has presented no federal constitutional or Nevada state authority tending to 25 establish a reasonable probability that a motion to enforce the unconsummated plea 26 27 20 #21, Ex. 24, at 39. 28 21 #22, Ex. 94, at 2-3. -14- 1 agreement would have been successful.22 In the prior negotiations, the State offered a 2 recommendation of 24 to 60 month consecutive sentences. The State did so first for a 3 proposed plea deal that would have closed No. CR02-1040 alone, in negotiations conducted 4 before Griffin was charged with the April 6, 2002, armed robbery in No. CR02-1201. The State 5 then did so for a proposed plea deal that would have closed both No. CR02-1040 and No. 6 CR02-1201, pursuant to a package deal including a recommendation of 24 to 60 month 7 consecutive sentences also in No. CR02-1201. After Griffin declined to enter a plea in No. 8 CR02-1201, the State was under no obligation, under either state or federal law, to 9 nonetheless enter into a plea bargain that concluded both cases – with an agreement to 10 dismiss No. CR02-1201 as part of the overall deal – based upon the exposure previously 11 offered as to only one case. While Griffin maintains that he did not commit the armed robbery 12 in No. CR02-1201, the State had evidence tending to establish to the contrary, including a 13 positive in-court identification by the victim. The State was not required to close both cases 14 at the same sentencing exposure that it previously had offered as to only one case. 15 Griffin cites no authority holding that the State was required to abandon consideration 16 of No. CR02-1201 in plea negotiations simply because he denied that he did the offense. It 17 is an inherent aspect of plea bargaining that securing the dismissal of additional charges can 18 come at the cost of an agreement to additional sentencing exposure on the charges to which 19 the defendant enters a plea. The State clearly could bargain for more potential exposure in 20 a plea deal that closed both cases. Petitioner has presented no authority holding that what 21 in truth is inherent to the plea bargaining process is unconstitutionally “coercive.” If petitioner 22 23 24 25 26 27 28 22 Cf. United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.1992)(“[N]either the defendant nor the governm ent is bound by a plea agreem ent until it is approved by the court.”); United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir.1993) (“A plea agreem ent that has not been entered and accepted by the trial court does not bind the parties.”). The state court record further fully supports the state district court’s factual finding that it invited, but did not direct, defense counsel to file such a m otion if the defense wanted. The point in any event is not a m aterial one. If the state court had directed the filing of such a m otion but there was not a reasonable probability of success on the m otion if it were filed, petitioner would not be able to establish prejudice based upon the failure to file the m otion. -15- 1 did not believe that the plea deal was in his best interests considering the evidence and 2 potential exposure in the two cases, he was free to go to trial, in either one or both cases. 3 Petitioner further has not established a reasonable probability that a defendant in his 4 situation would not have entered the plea and instead would have elected to go to trial but for 5 counsel’s failure to file the meritless motion. The Court notes in this regard that petitioner 6 himself entered the plea at the very same proceeding where the prospect of filing such a 7 motion was discussed. If the filing of the motion were a determinative factor for him, all that 8 he had to do was decline to enter into the plea and instruct his counsel to file the motion. 9 Petitioner did not do that. He instead affirmed to the state district court, inter alia, that he had 10 enough time to discuss the entire matter with counsel, that he was satisfied with the legal 11 services provided by counsel, that he understood that he did not have to change his plea, that 12 no promises outside of the plea agreement had been made to him to induce him to change 13 his plea, that no threats had been made against him to get him to change his plea, that he was 14 changing his plea freely and voluntarily, and that he was pleading guilty because he was guilty 15 and for no other reason. These declarations to the state district court during the plea colloquy 16 present a formidable barrier to any claim by Griffin that defense counsel’s failure to file the 17 motion in the short interval before Griffin accepted the plea deal affected the outcome as to 18 entry of a plea. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 19 136 (1977).23 20 The state courts’ rejection of this claim accordingly was neither contrary to nor an 21 unreasonable application of clearly established federal law, as reflected by Strickland, Tollett 22 and Hill. 23 Ground 1-1 therefore does not provide a basis for federal habeas relief. 24 25 26 27 28 23 The Court additionally notes that petitioner, by the plea deal, secured the dism issal of a crim inal case in which additional charges potentially could have been filed based upon the robber striking the store clerk with the weapon and, m ore im portantly, pulling the trigger while stating that he was going to kill the clerk. There perhaps was a strong incentive for a defendant in petitioner’s situation to accept culpability in No. CR02-1040 (where he was followed from the scene, arrested, and im m ediately identified) in an effort to avoid possible exposure in No. CR02-1201 that potentially m ight not be lim ited to only arm ed robbery. -16- 1 2 Ground 1-2 In Ground 1-2, petitioner alleges that he was denied effective assistance of counsel 3 because counsel did not object to the State’s reference to the facts in case No. CR02-1201 4 in the sentencing on No. CR02-1040. Griffin urges that it was improper for the State to refer 5 to the facts in No. CR02-1201 because the case was dismissed only minutes later at the 6 sentencing. Petitioner maintains that “the State knew Case 1201 would be dismissed because 7 Griffin did not do the acts charged in 1201, yet the State blatantly used the facts of the soon 8 to be dismissed case against Griffin.”24 9 The basic background facts regarding this claim, including those concerning the 10 relationship between the two cases, are summarized in the discussion above of Ground 1-1. 11 In the plea agreement, Griffin expressly acknowledged the following: I understand and agree that pursuant to the terms of the plea agreement stated herein, any counts that are to be dismissed and any other cases charged or uncharged which are either to be dismissed or not pursued by the State, may be considered by the court at the time of my sentencing. 12 13 14 15 #21, Ex. 22, at 4, ¶ 11. 16 At the sentencing, the State maintained that “contrary to Mr. Griffin’s protestations that 17 he’s not the person who committed that armed robbery,” the State had evidence tending to 18 establish that he did. The State pointed to the store clerk’s positive identification of Griffin as 19 the robber and Eric Norman’s positive identification of Griffin as the person who provided him 20 the necklace.25 21 On state post-conviction review, the state district court rejected a related independent 22 substantive claim on the following grounds: Petitioner . . . claims the State, during Petitioner’s sentencing hearing, wrongfully referred to charges that were later dismissed. The State argues that this claim should [be] dismissed because, under Nevada law, a prosecutor may cite to dismissed charges at sentencing. See Jezierski v. State, 107 Nev. 395, 812 23 24 25 26 27 24 #32, at electronic docketing page 4. 28 25 #21, Ex. 24, at 18-19. -17- P.2d 355 (1991). The Court finds that the State’s reference to dismissed charges against the Petitioner was not wrongful, and, therefore, Petitioner’s claim is dismissed. 1 2 3 #22, Ex. 61, at 3. 4 The state district court rejected the related claim of ineffective assistance of counsel on 5 the following grounds: Petitioner also claims his counsel was ineffective because he did not object to the State’s reference to dismissed charges at sentencing. The Court addressed this point in Petitioner’s first claim for relief, holding that Nevada law allows prosecutors to refer to dismissed charges at sentencing. Therefore, the Court finds that Petitioner . . . has failed to present any fact, if true, that would entitle him to relief. Thus this claim is dismissed. 6 7 8 9 10 #22, Ex. 61, at 4. 11 The Supreme Court of Nevada affirmed the state district court’s decision as to this claim 12 on the grounds that petitioner had not demonstrated that the district court’s findings were not 13 supported by substantial evidence or were clearly wrong and that he had not demonstrated 14 that the lower court erred as a matter of law.26 15 Petitioner has not carried his burden of demonstrating that the state courts’ rejection 16 of Ground 1-2 was contrary to or an unreasonable application of clearly established federal 17 law. 18 Petitioner did not even respond in the reply on this claim as well, responding only as 19 to Ground 1-6. He has presented no state or federal authority tending to establish a 20 reasonable probability that an objection by defense counsel to the State’s reference to the 21 charges in No. CR02-1201 would have been sustained, much less that such an objection 22 would have changed the outcome of the sentencing proceeding. 23 At bottom, petitioner’s underlying premise for the claim is fundamentally flawed. 24 Petitioner urges that the State acted improperly in referring to the facts in No. CR02-1201 25 because the State allegedly knew that the case was being dismissed because Griffin did not 26 do the acts charged. No. CR02-1201 was not being dismissed on the premise that Griffin did 27 28 26 #22, Ex. 94, at 2-3. -18- 1 not commit the armed robbery. Rather, No. CR02-1201 was being dismissed as part of a plea 2 deal in which the State agreed to dismiss No. CR02-1201 in connection with petitioner’s entry 3 of a plea to the charge in No. CR02-1040. The State never abandoned its position that Griffin 4 committed the armed robbery in No. CR02-1201, and it never made any concession that 5 Griffin did not commit the armed robbery. The armed robbery charge in No. CR02-1201 6 instead was supported by testimony by the store clerk that the justice court found established 7 probable cause for the charge to proceed forward in the district court. As discussed as to 8 Ground 1-1, Griffin’s own self-serving statements that he did not commit the armed robbery 9 in No. CR02-1201 do not establish that he did not commit the armed robbery. His own self10 serving statements clearly did not provide a basis for barring the State from referring to the 11 facts in No. CR02-1201 at sentencing, especially given Griffin’s express acknowledgment in 12 the written plea agreement that the sentencing court could consider dismissed charges. 13 Moreover, as the Ninth Circuit has noted, "the Supreme Court has not delineated a 14 standard which should apply to ineffective assistance of counsel claims in noncapital 15 sentencing cases [such that] ... there is no clearly established federal law as determined by 16 the Supreme Court in this context." Davis v. Grigas, 443 F.3d 1155, 1158 (9th 17 Cir.2006)(internal citation omitted). Because there is no clearly established Supreme Court 18 precedent that applies in this noncapital sentencing context, petitioner cannot establish that 19 the state courts’ rejection of his claim was either contrary to or an unreasonable application 20 of clearly established federal law as determined by the United States Supreme Court. Id. 21 The state courts’ rejection of this claim accordingly was neither contrary to nor an 22 unreasonable application of clearly established federal law. 23 24 25 Ground 1-2 therefore does not provide a basis for federal habeas relief. Ground 1-3 In Ground 1-3, petitioner alleges that he was denied effective assistance of counsel 26 because counsel failed to object to and correct “false information” and “errors” in the 27 presentence investigation report. Griffin asserts that he brought “these errors” to counsel’s 28 attention yet he did nothing to correct them. #32, at electronic docketing pages 4-5. -19- 1 As respondents correctly note, the amended petition does not specify, inter alia, what 2 “false information” or “errors” allegedly were contained in the presentence investigation report. 3 Nor does petitioner allege how he was prejudiced as a result. 4 At the sentencing, defense counsel advised the court, inter alia, that the presentence 5 investigation report did not correctly state the plea bargain, which was acknowledged by the 6 parole and probation representative. Counsel also advised the court that the report referred 7 to a number of arrests and charges that were dismissed, not pursued, or as to which no 8 information was available; and he asked the court to disregard them. Parole and probation 9 recommended consecutive sentences of 72 to 180 months, with the consecutive sentencing 10 on the weapon enhancement being mandatory. The State sought to have the court follow this 11 recommendation, noting, inter alia, that petitioner had two prior convictions, one for robbery 12 and the other for armed robbery. The defense sought lesser consecutive sentences of 24 to 13 60 months. The court imposed consecutive sentences of 24 to 180 months.27 14 On state post-conviction review, the state district court held an evidentiary hearing on 15 petitioner’s claims that the presentence investigation report contained errors and that his 16 counsel was ineffective for failing to object to and correct the errors. 17 At the evidentiary hearing, Griffin testified, inter alia, that he pointed out to defense 18 counsel that the report showed 26 arrests with no dispositions. He testified that he instead 19 had been arrested prior to the present case “no more than” 14 times. When pressed on cross20 examination, however, he could not identify any errors in the description of his arrest record. 21 All that he could point to, as purportedly erroneous, was the fact that a single arrest on multiple 22 charges would generate multiple entries on the report. His argument thus apparently turned 23 on the distinction that the 26 entries reflected that he was arrested on 26 different charges 24 rather than that he was arrested on 26 different occasions. Griffin further acknowledged that 25 defense counsel had advised the court that the arrests had not led to convictions and 26 requested that the court disregard the arrests. #22, Ex. 66, at 6-8 & 23-28. 27 28 27 #21, Ex. 24, at 3-5, 7, 9-10, 19-20, 25-27 & 39. -20- 1 Griffin further acknowledged that the prior criminal history section of the report 2 accurately reported his two prior felony convictions, one for robbery and the other for armed 3 robbery. He relied, however, on an erroneous reference on the last page of the report that 4 referred to an aggravating factor of: “Extensive criminal history, including three felony 5 convictions of violence.”28 6 Griffin explained that his belief that the above arrest and conviction references in the 7 presentence report resulted in him getting 180 months for the top end of his sentence was 8 based on the following: . . . I remember the judge and Miss Pappas [the parole and probation representative] – well, the judge mentioned to Miss Pappas, “This paperwork looks – the P and P looks like it’s right on the money.” So he said, “I’m going to give you the low end of the DA and the high end of the P and P.” 9 10 11 12 #22, Ex. 66, at 9. 13 What the transcript of the sentencing instead shows, however, is that it was the 14 prosecutor who said: “After making the changes, I think the Division’s recommendation is right 15 on the money, Judge.”29 The sentencing transcript does not contain anything remotely 16 resembling the exchange described by Griffin between the judge and the division 17 representative. His testimony seeking to establish prejudicial impact thus was directly belied 18 by the contemporaneous record. 19 The state district judge, who presided at both the sentencing and the state post- 20 conviction evidentiary hearing, found as follows. He found in both oral and written findings that 21 he did not rely on the arrest record and that he relied on the correct number of two convictions 22 – which is how the State had argued the matter – rather than three. The judge stated that he 23 imposed the 180-month high end on the sentence because of the two prior robbery 24 convictions, one of which was for armed robbery. The court accordingly rejected the post25 conviction claims presented. #22, Ex. 66, at 45-47; id., Ex. 71, at 1-2. 26 27 28 #21, Ex. 24, at 6-7 & 16-20. 28 29 Id., at 19, lines 9-11. -21- 1 The Supreme Court of Nevada, citing the Strickland standard, affirmed the state district 2 court’s decision as to the ineffective assistance claim on the grounds that petitioner had not 3 demonstrated that the district court’s findings were not supported by substantial evidence or 4 were clearly wrong and that he had not demonstrated that the lower court erred as a matter 5 of law.30 6 Petitioner has not carried his burden of demonstrating that the state courts’ rejection 7 of Ground 1-3 was based upon an unreasonable determination of fact or was contrary to or 8 an unreasonable application of clearly established federal law. 9 Here, too, petitioner did not respond in the reply as to this claim. The conclusory claim 10 and lack of argument presented by petitioner on federal habeas review clearly fails to establish 11 that the state courts’ rejection of the corresponding claim was based upon an unreasonable 12 determination of fact or was either contrary to or an unreasonable application of clearly 13 established federal law. The state district court expressly found that the arrests did not factor 14 into the sentence and that the sentence was based upon petitioner having two, not three, prior 15 convictions. Petitioner has not begun to carry his burden of demonstrating that the state 16 district court’s factual determination was an unreasonable determination of fact. The state 17 court’s factual findings thus are clothed with a presumption of correctness. Lambert, 393 F.3d 18 at 972. In light of the state district court’s findings, petitioner cannot establish prejudice under 19 Strickland even if he, arguendo, could establish deficient performance by counsel. See also 20 Davis, supra (there is no clearly established Supreme Court precedent delineating the 21 standards applicable to ineffective assistance of counsel claims in noncapital sentencing 22 cases). 23 24 25 Ground 1-3 therefore does not provide a basis for federal habeas relief. Ground 1-4 In Ground 1-4, petitioner alleges that he was denied effective assistance of counsel 26 because counsel allegedly misled him into accepting the plea by erroneously informing him 27 28 30 #22, Ex. 94, at 2-3. -22- 1 – off the record – that the State would not pursue the 180-month top end of the sentencing 2 range but instead would make a recommendation of 24 to 60 month consecutive sentences 3 that was discussed in the prior plea negotiations that were not consummated.31 4 The basic background facts regarding this claim, including those concerning the prior 5 negotiations, are summarized in the discussion above of Ground 1-1. 6 In the written plea agreement, petitioner expressly acknowledged, inter alia, the 7 following: I understand that the consequences of my plea of guilty are that I may be imprisoned for a period of two to fifteen years in the Nevada State Prison plus an additional consecutive sentence of two to fifteen years in the Nevada State Prison for the weapon enhancement and that I am not eligible for probation. 8 9 10 In exchange for my plea of guilty, the State, my counsel and I have agreed to recommend the following: The State will be free to argue for an appropriate sentence. . . . . 11 12 I understand that, even though the State and I have reached this plea agreement, the State is reserving the right to present arguments, facts, and/or witnesses at sentencing in support of the plea agreement. 13 14 15 .... 16 I understand that the Court is not bound by the agreement of the parties and that the matter of sentencing is to be determined solely by the Court. . . . . 17 18 ..... 19 20 My plea of guilty is voluntary, is not the result of any threats, coercion or promises of leniency. 21 I am signing this Plea Memorandum voluntarily with advice of counsel, under no duress, coercion, or promises of leniency. 22 23 #21, Ex. 22, at 3-5, ¶¶ 6-8, 12 & 15-16. 24 In the plea colloquy, Griffin again acknowledged on the record that no promises outside 25 of the plea agreement had been made to him to induce him to change his plea, that the State 26 was free to argue for the maximum penalty, that the court did not have to follow any 27 28 31 #32, at electronic docketing pages 4-5. -23- 1 negotiations, and that his sentencing exposure was consecutive sentences of two to fifteen 2 years on the robbery and weapon enhancement, consecutive to the sentence that he then was 3 serving.32 4 On state post-conviction review, the state district court rejected a related independent 5 substantive claim on the following grounds: 6 Petitioner argues that the State enticed him into entering the plea agreement by promising to argue for a lighter sentence. The State contends that this argument should be dismissed because the record belies Petitioner’s allegation. This Court finds that Petitioner signed the plea agreement, which states a prison term of 2 to 15 years for both the burglary [sic] charge and the weapon enhancement. Petitioner raises no specific factual allegations that Petitioner entered into that plea agreement involuntarily. Thus, the Court dismisses this portion of Petitioner’s claim. 7 8 9 10 11 12 #22, Ex. 61, at 2. 13 The state district court rejected the related claim of ineffective assistance of counsel on 14 the following grounds: 15 Petitioner also claims counsel misinformed him as to the State’s recommendation at sentencing. The State contends this claim should be dismissed because Nevada law treats plea agreements as contracts and, therefore, the terms of the plea agreement control regardless of Petitioner’s subjective expectations. This Court addressed this issue in Petitioner’s first claim, finding that the plea agreement clearly stated the maximum term that Petitioner could receive under the agreement. Therefore, this Court finds that the Petitioner’s statement is conclusory, failing to show specific facts that would entitle him to relief on this issue. This Court dismisses this portion of Petitioner’s . . . claim for relief. 16 17 18 19 20 21 22 #22, Ex. 61, at 4. 23 The Supreme Court of Nevada affirmed the state district court’s decision as to this claim 24 on the grounds that petitioner had not demonstrated that the district court’s findings were not 25 supported by substantial evidence or were clearly wrong and that he had not demonstrated 26 that the lower court erred as a matter of law. #22, Ex. 94, at 2-3. 27 28 32 #21, Ex. 21, at 8-11. -24- 1 Petitioner has not carried his burden of demonstrating that the state courts’ rejection 2 of Ground 1-4 was based upon an unreasonable determination of fact and/or was contrary to 3 or an unreasonable application of clearly established federal law. On this claim as well, 4 petitioner did not even respond in the reply on this claim. 5 In Blackledge, the Supreme Court stated: 6 . . . . [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. 7 8 9 10 11 431 U.S. at 73-74, 97 S.Ct. at 1629. The Blackledge Court observed that “a petitioner 12 challenging a plea given pursuant to procedures [similar to those employed by the state court 13 in this case] will necessarily be asserting that not only his own transcribed responses, but 14 those given by two lawyers, were untruthful.” 431 U.S. at 80 n.19, 97 S.Ct. at 1632 n. 19. 15 Under Blackledge, a collateral attack that directly contradicts the responses at the plea 16 proceedings “will entitle a petitioner to an evidentiary hearing only in the most extraordinary 17 circumstances.” Id. 18 Under Blackledge, Griffin cannot accomplish what he is trying to do here. He may not 19 overturn an otherwise clearly valid guilty plea, accepted following a thorough plea colloquy, 20 based upon uncorroborated allegations as to what allegedly occurred “off the record” that 21 directly contradict the declarations that he made to the court at the time of the plea. 22 Petitioner’s uncorroborated post hoc account, which flies directly in the face of his 23 acknowledgments to the court during the colloquy, does not present “the most extraordinary 24 circumstances” that would warrant an evidentiary hearing under Blackledge. The state courts’ 25 summary dismissal of this claim clearly was neither contrary to nor an unreasonable 26 application of clearly established federal law. 27 Ground 1-4 therefore does not provide a basis for federal habeas relief. 28 //// -25- 1 2 Ground 1-5 In Ground 1-5, petitioner alleges that he was denied effective assistance of counsel 3 because counsel allegedly failed to perform “investigation and defenses necessary to dismiss” 4 case No. CR02-1201 before his sentencing. Griffin maintains that “[t]here were discussions” 5 between his counsel and the State “well before” his sentencing. He alleges that with “a little 6 effort,” only “a modicum of effective assistance,” counsel “could have easily performed 7 sufficient investigation . . . to insure” the case was dismissed prior to his sentencing. Griffin 8 alleges that counsel’s failure adversely impacted his sentencing.33 9 The basic background facts regarding this claim, including those concerning the 10 relationship between the two cases, are summarized in the discussion above of Ground 1-1. 11 As respondents note, the amended petition does not specify, inter alia, what further 12 investigation and defenses should have been pursued. Nor does the amended petition specify 13 what information would have been developed through such unspecified investigation that 14 allegedly would have insured the dismissal of No. CR02-1201. 15 The state district court rejected the corresponding claim presented in the state courts 16 on the following grounds: 17 . . . Petitioner’s claim that counsel failed to timely investigate the separate charge raises no factual allegation that entitles him to relief. Nevada law allows the State to reference dismissed charges; thus, this Court finds that the State would have been able to call the Court’s attention to the charges even if counsel was successful in getting the charges dismissed after an investigation. Therefore, this Court dismisses this portion of Petitioner’s claim. 18 19 20 21 22 #22, Ex. 61, at 3. 23 The Supreme Court of Nevada affirmed the state district court’s decision as to this claim 24 on the grounds that petitioner had not demonstrated that the district court’s findings were not 25 supported by substantial evidence or were clearly wrong and that he had not demonstrated 26 that the lower court erred as a matter of law. #22, Ex. 94, at 2-3. 27 28 33 #32, at electronic docketing pages 6-7. -26- 1 Petitioner has not carried his burden of demonstrating that the state courts’ rejection 2 of Ground 1-5 was based upon an unreasonable determination of fact or was contrary to or 3 an unreasonable application of clearly established federal law. Here as well, petitioner did not 4 even respond in the reply on this claim. 5 The conclusory claim and lack of argument presented on federal habeas review clearly 6 fails to carry petitioner’s burden. 7 The Court notes, first, that the “discussions as to the dismissal” of No. CR02-1201 8 between counsel and the State concerned the dismissal of the case pursuant to a plea 9 bargain. Petitioner repeatedly has stated or implied in this proceeding that the State 10 dismissed No. CR02-1201 because the State allegedly knew that Griffin did not commit the 11 crime. As discussed extensively above as to Grounds 1-1 and 1-2, the record flatly refutes 12 Griffin’s representations. The crime victim made a positive in-court identification of Griffin as 13 the robber, and there is no indication in the record that the State intended to abandon the 14 prosecution in No. CR02-1201 in the absence of a plea deal. No. CR02-1201 ultimately was 15 dismissed pursuant to a plea bargain under which No. CR02-1201 would be dismissed at 16 Griffin’s sentencing, not before, and under which the sentencing court was not precluded from 17 considering dismissed charges. While Griffin maintained and maintains that he did not commit 18 the robbery in No. CR02-1201, his self-serving denials – clearly – do not establish that there 19 was not sufficient evidence for the State to bring the case to trial. Petitioner’s implication that 20 No. CR02-1201 was hovering on the brink of dismissal prior to his sentencing, per discussions 21 between counsel, is directly belied by the record. The state court record instead reflects that, 22 absent the plea deal, the case was going to trial.34 23 The Court notes, second, that petitioner, in his conclusory claim and his nonresponsive 24 reply as to this claim, has completely failed to present any specific information or defense that 25 would have provided a basis for dismissing No. CR02-1201. Again, the store clerk positively 26 identified Griffin as the robber. Petitioner’s claim is speculative as well as conclusory, as it is 27 28 34 See text, supra, at 10, 15 & 18-19. -27- 1 entirely speculative as to what further – as yet unspecified – investigation would have revealed 2 that was not known at the time and that would have resulted in the dismissal of the case. In 3 order to establish ineffective assistance of counsel, petitioner must establish not only what 4 counsel allegedly failed to do, but also that he sustained prejudice as a result. It is entirely 5 speculative that further investigation would have yielded results that would have provided a 6 basis for dismissal of No. CR02-1201 prior to petitioner’s sentencing. 7 The state courts’ rejection of this conclusory and speculative claim was neither contrary 8 to nor an unreasonable application of clearly established federal law. 9 10 11 Ground 1-5 therefore does not provide a basis for federal habeas relief. Ground 1-6 In Ground 1-6, petitioner alleges that defense counsel “failed to advise and/or consult 12 with” him regarding his direct appeal rights. He maintains that he discovered his direct appeal 13 rights from other inmates. According to Griffin, he filed a pro se notice of appeal only after 14 learning of his appeal rights from fellow inmates. Petitioner alleges that “this failure by counsel 15 to advise and/or consult with [him] regarding [his] direct appeal rights amounts to ineffective 16 assistance.”35 17 Petitioner did not include any claim in Ground 1-6 in the amended petition alleging that 18 counsel provided ineffective assistance by failing to argue any particular issue or issues on 19 appeal. The claim in Ground 6 instead was based upon counsel allegedly failing “to advise 20 and/or consult with” petitioner as to his direct appeal rights, such that petitioner did not learn 21 of his appeal rights until he learned of them from other inmates. 22 At the outset, petitioner’s allegation that he was not advised or informed of his direct 23 appeal rights, such that he had to first learn of them from other inmates, is directly belied by 24 the state court record. During the plea colloquy, the state district court specifically informed 25 Griffin that “you have a right of appeal even on a guilty plea.” The court told Griffin to “[m]ake 26 sure that you talk to [defense counsel] about that, because any appeal must be filed within 30 27 28 35 #32, at electronic docketing page 7. -28- 1 days from the date of sentencing.” The court asked Griffin whether he understood that, and 2 he replied: “Yes, sir.” The court asked him whether he had any questions, and he responded: 3 “No, sir.”36 4 Petitioner’s allegation that he was not informed of his direct appeal rights until he was 5 told by other inmates thus is completely false. 6 Indeed, the state court record reflects that the public defender filed a timely notice of 7 appeal at 8:57 a.m. on November 21, 2002, before petitioner’s pro se notice of appeal was 8 filed by the Clerk later that day at 2:16 p.m. on November 21, 2002.37 The public defender 9 thereafter pursued the appeal, filing a fast track statement in support of the appeal. Counsel 10 sought review of the sentence for abuse of discretion and requested a remand for a 11 resentencing by a different judge.38 The fast track statement reflects that the public defender 12 had filed the notice of appeal “at Mr. Griffin’s request.”39 13 Subsequently on state post-conviction review, the state district court rejected the 14 corresponding claim of ineffective assistance of counsel presented to that court on the 15 following grounds: . . . Petitioner states that counsel was ineffective because he failed to inform Petitioner of his right to appeal. This Court finds that Petitioner appealed his sentence to the Nevada Supreme Court. The Nevada Supreme Court, upon review, upheld Petitioner’s sentence. Therefore, the Court dismisses Petitioner’s claim on [sic] ineffective assistance that he was uninformed as to an appeal. 16 17 18 19 20 #22, Ex. 66, at 4-5. 21 22 23 24 25 36 #21, Ex. 21, at 9. Petitioner’s reliance in the reply upon holdings that a federal district court m ust inform a federal crim inal defendant of his appeal rights is m isplaced for a num ber of reasons. First, Ground 1-6, as pled in the am ended petition, presented a claim of ineffective assistance of counsel, not a claim of error by the state court. Second, rules applicable in federal crim inal cases are not always based upon federal constitutional principles applicable to the state courts, and there is no federal constitutional requirem ent that a state court advise a defendant of his appeal rights. Third, in all events, the state district court in fact inform ed Griffin that he would have a right to file an appeal after the sentencing. 26 37 #21, Exhs. 31 & 32. 27 38 #21, Ex. 38. 28 39 Id., at 2. -29- 1 The Supreme Court of Nevada affirmed the state district court’s decision as to this claim 2 on the grounds that petitioner had not demonstrated that the district court’s findings were not 3 supported by substantial evidence or were clearly wrong and that he had not demonstrated 4 that the lower court erred as a matter of law.40 5 The state courts’ rejection of the ineffective assistance claim presented in Ground 1-6 6 was neither contrary to nor an unreasonable application of clearly established federal law. 7 Petitioner clearly was informed of his right to appeal by the state district court, and he filed a 8 timely appeal, both through counsel and pro se. He accordingly cannot conceivably establish 9 prejudice from an alleged failure to advise and/or consult with him regarding his direct appeal 10 rights. He was not deprived of a direct appeal through any such alleged failure to inform and 11 consult with him as to his appeal rights. 12 The fundamental flaw in the claim presented in the amended petition in Ground 1-6 is 13 reflected by petitioner’s reliance upon Martin v. Texas, 737 F.2d 460 (5th Cir. 1984). Griffin 14 relies upon Martin for the proposition that a failure to inform a defendant of his right to appeal 15 results in prejudice per se. However, Martin was a case, unlike the present one, where a 16 timely direct appeal was not filed. Moreover, unlike the present case, the defendant “was not 17 informed of this right by the trial judge.” 737 F.2d at 462. In a case, such as the present one, 18 where (a) the defendant was informed of his right to appeal by the trial court and (b) a timely 19 appeal in fact was filed, there not only is no per se prejudice from counsel’s alleged failure to 20 inform and consult with the defendant as to his appeal rights, there is no prejudice at all. 21 The state court’s rejection of this claim accordingly was neither contrary to nor an 22 unreasonable application of clearly established federal law. 23 In the federal reply, petitioner sought to present a claim for the first time in this federal 24 action that counsel was ineffective for failing to raise a claim on direct appeal based upon 25 alleged errors in the presentence investigation report. This is a distinct and different claim 26 from the claim raised in the amended petition in Ground 1-6. The amended petition presented 27 28 40 #22, Ex. 94, at 2-3. -30- 1 only a claim based upon a failure to inform and consult with petitioner regarding his direct 2 appeal rights. The amended petition presented no claim that counsel was ineffective based 3 upon a failure to raise a particular claim or claims in the direct appeal that was filed. Ground 4 1-6 made no mention of a failure to raise a claim on direct appeal based upon alleged errors 5 in the presentence investigation report. 6 A habeas petitioner may not raise a claim for the first time in the reply. See,e.g., 7 Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994). The only way to present an 8 additional claim is in a properly-filed amended petition. Under Rule 15(a)(2) of the Federal 9 Rules of Civil Procedure, a petitioner can amend the petition after the respondents have filed 10 an answer only with the respondents’ written consent or by obtaining leave of court to amend. 11 Petitioner has not presented the claim argued in the reply in a properly-filed amended petition, 12 and the claim therefore is disregarded herein. 13 14 15 Ground 1-6 does not provide a basis for federal habeas relief. Consideration of a Certificate of Appealability Under Rule 11 of the Rules Governing Section 2254 Cases, the district court must issue 16 or deny a certificate of appealability (COA) when it enters a final order adverse to the 17 applicant. A district court order granting or denying a certificate of appealability does not 18 eliminate the requirement that the petitioner must file a timely notice of appeal in order to 19 appeal the court’s judgment. A motion to reconsider the order regarding a certificate of 20 appealability does not extend the time to appeal. 21 As to the claims rejected by the district court on the merits, under 28 U.S.C. § 2253(c), 22 a petitioner must make a "substantial showing of the denial of a constitutional right" in order 23 to obtain a certificate of appealability. Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 24 1595, 1603-04, 146 L.Ed.2d 542 (2000); Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999). 25 To satisfy this standard, the petitioner "must demonstrate that reasonable jurists would find 26 the district court's assessment of the constitutional claim debatable or wrong." Slack, 529 U.S. 27 at 484, 120 S.Ct. at 1604. 28 The Court denies a COA as to all claims, for the reasons outlined below. -31- 1 Ground 1-1 2 Jurists of reason would not find the dismissal of Ground 1-1 on the merits to be 3 debatable or wrong. 4 In Ground 1-1, petitioner alleges that he was denied effective assistance of counsel 5 because counsel did not file a motion to hold the State to a prior unconsummated plea 6 agreement. Petitioner maintains that the State was attempting to pressure him into pleading 7 guilty in another case to an armed robbery that he allegedly did not commit. He alleges that, 8 when he refused to do so, the State withdrew from the prior agreement and instead presented 9 a proposed plea agreement that had three times as much sentencing exposure. Griffin 10 maintains that counsel should have fought against the State’s “transparent attempt to coerce 11 Griffin (successfully) into entering the second plea agreement.” 12 Petitioner has presented no state or federal authority tending to establish a reasonable 13 probability that a motion to enforce the unconsummated plea agreement would have been 14 successful. While petitioner maintains that he did not commit the armed robbery in the other 15 case, the State had evidence tending to establish to the contrary, including a positive in-court 16 identification by the victim. Petitioner cites no authority tending to establish that the State was 17 required to abandon consideration of the other case in plea negotiations simply because of 18 his self-serving denial of the other armed robbery. Nor does he cite authority tending to 19 establish that the State was required to enter into a plea deal closing both cases at the same 20 sentencing exposure that it previously had offered as to only one case. At bottom, he presents 21 no authority holding that what in truth was inherent to the plea bargaining process was 22 unconstitutionally “coercive.” 23 Petitioner further has not established a reasonable probability that a defendant in his 24 situation would not have entered the plea and instead would have elected to go to trial but for 25 counsel’s failure to file the motion. Petitioner himself entered the plea at the very same 26 proceeding where the prospect of filing such a motion was discussed. If the filing of the 27 motion were a determinative factor for him, all that he had to do was decline to enter into the 28 plea and instruct his counsel to file the motion. Petitioner did not do that. He instead made -32- 1 multiple affirmations during the plea colloquy confirming that his plea was entered freely and 2 voluntarily. These declarations present a formidable barrier under Blackledge, supra, to a 3 claim that counsel’s failure to further pursue the issue in the short interval before Griffin 4 accepted the plea deal affected the outcome as to petitioner’s entry of a plea. 5 Reasonable jurists therefore would not find debatable or wrong this Court’s conclusion 6 that the state supreme court’s rejection of this claim was neither contrary to nor an 7 unreasonable application of clearly established federal law. See text, supra, at 7-16. 8 9 Ground 1-2 Jurists of reason would not find the dismissal of Ground 1-2 on the merits to be 10 debatable or wrong. 11 In Ground 1-2, petitioner alleges that he was denied effective assistance of counsel 12 because counsel did not object to the State’s reference to the facts of his other armed robbery 13 case at sentencing, a case that was dismissed moments later. Petitioner urges that the other 14 armed robbery case was being dismissed because the State allegedly knew that he did not 15 commit the offense. 16 At bottom, petitioner’s underlying premise for the claim is fundamentally flawed. The 17 other case was not being dismissed on the premise that Griffin did not do the acts charged. 18 Rather, the other case was being dismissed as part of an overall plea deal in which the State 19 agreed to dismiss the other case in exchange for petitioner’s plea. Petitioner’s own self20 serving denials clearly did not provide a basis for barring the State from referring to the facts 21 of the other case at sentencing, especially given Griffin’s express acknowledgment in the 22 written plea agreement that the sentencing court could consider other charges. 23 Petitioner presents no federal constitutional or state law authority tending to establish 24 a reasonable probability that an objection by defense counsel to the State’s reference to the 25 charges in the other case would have been sustained, much less that such an objection would 26 have changed the outcome of the sentencing proceeding. 27 Moreover, the Ninth Circuit has noted that the United States Supreme Court has not 28 delineated a standard applicable to ineffective assistance of counsel claims in noncapital -33- 1 sentencing cases. There accordingly is no clearly established federal law as determined by 2 the Supreme Court in this context. Davis, supra. 3 Reasonable jurists therefore would not find debatable or wrong this Court’s conclusion 4 that the state supreme court’s rejection of this claim was neither contrary to nor an 5 unreasonable application of clearly established federal law. See text, supra, at 17-19. 6 7 Ground 1-3 Jurists of reason would not find the dismissal of Ground 1-3 on the merits to be 8 debatable or wrong. 9 In Ground 1-3, petitioner alleges conclusorily that he was denied effective assistance 10 of counsel because counsel failed to object to and correct “false information” and “errors” in 11 the presentence investigation report (PSR). 12 The only clear error identified in the PSR at the state court evidentiary hearing was that 13 the report detailed in the criminal history section two prior convictions but referred in the 14 recommendation section to there being three prior convictions. The state district court made 15 a factual finding – which was consistent with the State’s argument at sentencing – that it relied 16 upon there being only two prior convictions at the sentencing. 17 The only other, purported, error identified in the PSR was the fact that arrests on 18 multiple charges from the same incident resulted in multiple entries in the report. Petitioner 19 complained that his “only” 13 or 14 arrests therefore resulted in 26 entries in the report due 20 to the multiple charges. Defense counsel did in fact ask the state district court to disregard 21 the arrests section of the report at sentencing. The state district court made a factual finding 22 that it did not rely upon arrests at sentencing. 23 The conclusory claim and lack of argument presented by petitioner on federal habeas 24 review clearly fails to establish that the state courts’ rejection of the corresponding claim was 25 based upon an unreasonable determination of fact or was contrary to or an unreasonable 26 application of clearly established federal law. The state district court expressly found that the 27 arrests did not factor into the sentence and that the sentence was based upon petitioner 28 having two, not three, previous convictions. -34- Petitioner has not carried his burden of 1 demonstrating that the state district court’s factual determination was an unreasonable 2 determination of fact. The state court’s factual findings thus are clothed with a presumption 3 of correctness. In light of the state court’s findings, petitioner cannot establish prejudice even 4 if he, arguendo, could establish deficient performance by counsel. See also Davis, supra (no 5 clearly established Supreme Court precedent delineating the standards applicable to 6 ineffective assistance of counsel claims in noncapital sentencing cases). 7 Reasonable jurists therefore would not find debatable or wrong this Court’s conclusion 8 that the state supreme court’s rejection of this claim was not based upon an unreasonable 9 determination of fact and was neither contrary to nor an unreasonable application of clearly 10 established federal law. See text, supra, at 19-22. 11 12 Ground 1-4 In Ground 1-4, petitioner alleges that he was denied effective assistance of counsel 13 because counsel allegedly misled him into accepting the plea by erroneously informing him 14 – off the record – that the State would not pursue the 180-month top end of the sentencing 15 range but instead would make a recommendation of 24 to 60 month consecutive sentences 16 that was discussed in prior negotiations that did not lead to a consummated plea agreement. 17 Petitioner’s allegations directly contradict multiple acknowledgments by petitioner in 18 both the written plea agreement and the plea colloquy as to, inter alia, his sentencing exposure 19 under the plea deal that was consummated. Under Blackledge, supra, he may not accomplish 20 what he is seeking to do here. He may not overturn an otherwise clearly valid guilty plea, 21 accepted following a thorough plea colloquy, based upon uncorroborated allegations as to 22 what allegedly occurred “off the record” that directly contradict his declarations to the court at 23 the time of the plea. Petitioner’s uncorroborated post hoc account, which flies directly in the 24 face of his declarations to the court, does not present “the most extraordinary circumstances” 25 that would warrant an evidentiary hearing under Blackledge. 26 Reasonable jurists therefore would not find debatable or wrong this Court’s conclusion 27 that the state supreme court’s rejection of this claim was neither contrary to nor an 28 unreasonable application of clearly established federal law. See text, supra, at 22-25. -35- 1 2 Ground 1-5 In Ground 1-5, petitioner alleges that he was denied effective assistance of counsel 3 because counsel allegedly failed to perform “investigation and defenses necessary to dismiss” 4 his other armed robbery case before his sentencing. 5 While petitioner maintains that the dismissal of the other case was being discussed 6 between counsel, that discussion concerned the dismissal of the case pursuant to a plea 7 bargain. Nothing in the state court record reflects that the other armed robbery case was 8 vulnerable to dismissal on a defense motion. The store clerk in the other armed robbery had 9 positively identified Griffin in court as the robber, and there is no indication in the state court 10 record that the State was considering dismissal of the case absent a plea deal. 11 Petitioner’s conclusory claim completely failed to present any specific information or 12 defense that would have provided a basis for dismissing the other armed robbery case. The 13 claim is speculative as well as conclusory, as it is entirely speculative as to what further – as 14 yet unspecified – investigation would have revealed that was not known at the time and that 15 would have resulted in the dismissal of the case. 16 Moreover, as the state district court noted, the plea agreement expressly permitted the 17 court to consider dismissed charges, such that a dismissal would not have necessarily 18 precluded the state district court from considering the facts of the other case at sentencing. 19 Reasonable jurists therefore would not find debatable or wrong this Court’s conclusion 20 that the state supreme court’s rejection of this claim was neither contrary to nor an 21 unreasonable application of clearly established federal law. See text, supra, at 26-28. 22 23 Ground 1-6 In Ground 1-6, petitioner alleges that defense counsel “failed to advise and/or consult 24 with” him regarding his direct appeal rights such that he had to learn of his appeal rights from 25 other inmates. 26 The allegation that petitioner was not informed of his direct appeal rights and learned 27 of them only through other inmates is directly refuted by the record. The state district court 28 clearly informed petitioner of his appeal rights during the plea colloquy. Timely notices of -36- 1 appeal in any event were filed by both the public defender and petitioner, and the public 2 defender represented petitioner on the appeal. Petitioner accordingly cannot conceivably 3 establish prejudice from an alleged failure by counsel to advise and/or consult with him 4 regarding his direct appeal rights. He was not deprived of a direct appeal through any such 5 alleged failure to inform and consult with him as to his appeal rights. 6 Reasonable jurists therefore would not find debatable or wrong this Court’s conclusion 7 that the state supreme court’s rejection of this claim was neither contrary to nor an 8 unreasonable application of clearly established federal law. See text, supra, at 28-31. 9 Petitioner further seeks to raise a different and distinct claim for the first time herein in 10 the federal reply alleging that counsel was ineffective for failing to raise a claim on direct 11 appeal based upon alleged errors in the presentence investigation report. A petitioner may 12 not raise a claim for the first time in the reply. See,e.g., Cacoperdo, supra. 13 A certificate of appealability therefore will be denied as to all claims. 14 IT THEREFORE IS ORDERED that the petition for a writ of habeas corpus shall be 15 DENIED and that this action shall be DISMISSED with prejudice on the merits. 16 IT FURTHER IS ORDERED that a certificate of appealability is DENIED. 17 The Clerk of Court shall enter final judgment accordingly, in favor of respondents and 18 against petitioner, dismissing this action with prejudice. 19 DATED: March 30, 2011. 20 21 22 23 _________________________________ HOWARD D. MCKIBBEN United States District Judge 24 25 26 27 28 -37-

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