Larson v. Smith et al, No. 3:2011cv00050 - Document 25 (D. Nev. 2014)

Court Description: ORDER denying in its entirety 1 Petition for Writ of Habeas Corpus; denying a certificate of appealability. The clerk shall enter judgment accordingly. Signed by Judge Miranda M. Du on 03/24/2014. (Copies have been distributed pursuant to the NEF - KR)
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Larson v. Smith et al Doc. 25 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 *** MARK RANDALL LARSON, 10 Petitioner, ORDER v. 11 12 Case No. 3:11-cv-00050-MMD-WGC GREG SMITH, et al., Respondents. 13 14 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 15 U.S.C. § 2254, by a Nevada state prisoner. This matter comes before the Court on the 16 merits of the petition. 17 I. PROCEDURAL HISTORY 18 A. 19 On May 4, 2006, by way of information, Petitioner was charged with felony 20 driving under the influence in violation of NRS 484.379 and 484.3792, in the Second 21 Judicial District Court for the State of Nevada.1 (Exhibit 3.)2 Based on a 2005 22 amendment to NRS 484.3792, Petitioner was charged with a felony because he had a 23 prior felony conviction for driving under the influence from August 15, 1997, for an 24 offense that occurred on May 17, 1997. (Exhibit 5, at pp. 3-4.) On May 16, 2006, at 25 arraignment, Petitioner entered a plea of guilty to one count of the felony offense of 26 27 28 Arraignment and Sentencing 1 The pertinent portion of former NRS 484.3792 is now codified at NRS 484C.410(1)(a). The exhibits referenced in this order are found in the Court’s record at dkt. nos. 2 9-12. Dockets.Justia.com 1 driving under the influence, in exchange for the State’s agreement to recommend a 2 sentence of no more than 24 to 60 months in the custody of the Nevada Department of 3 Corrections. (Exhibits 4 & 5.) 4 While conducting a thorough plea canvass, the state district court confirmed that 5 Petitioner was aware of the mandatory minimum penalties (2 years in prison and a 6 $2,000 fine) and the possible maximum penalties (15 years in prison and a $5,000 fine) 7 for the offense to which he was pleading guilty. (Exhibit 5, at pp. 5-12.) The court 8 confirmed that Petitioner understood that he would not be eligible for probation, that he 9 read and understood the executed guilty plea memorandum, that he had sufficient time 10 to review his case with his attorney, and that he was satisfied with the legal services 11 provided by his attorney. (Id., at pp. 6-8.) Petitioner further confirmed that he understood 12 that he had a right to a trial by jury, which he was waiving by pleading guilty, that he was 13 waiving his right to confront his accusers, to call witnesses in his favor, and to remain 14 silent. (Id., at p. 9.) Petitioner confirmed to the court that he understood that the court 15 was not bound by the plea agreement and that no one made any promises or threats 16 that induced him to enter a plea of guilty. (Id., at pp. 9-10.) 17 After Petitioner reiterated his desire to plead guilty to the charge of felony DUI, 18 the prosecutor recited the elements of the charges, including that Petitioner’s 1997 19 conviction for felony DUI was the basis for an enhancement. (Exhibit 5, at p. 11.) 20 Petitioner entered a plea of guilty to the charge of felony DUI, and the state district court 21 found that Petitioner entered his plea based on a knowing, voluntary, and intelligent 22 waiver of his constitutional rights. (Id., at p. 12.) 23 Prior to sentencing, Petitioner submitted a letter to the court explaining the 24 circumstances that led up to the commission of the underlying offense, asking the court 25 to be lenient in imposing sentence. (Exhibit 8.) At the sentencing hearing on June 29, 26 2006, Petitioner appeared with his attorney. (Exhibit 9.) At sentencing, the court 27 acknowledged that it had received and reviewed Petitioner’s letter prior to the hearing. 28 (Exhibit 9, at p. 3.) The State then provided the court with a copy of Petitioner’s 1997 2 1 judgment of conviction for felony DUI. (Id., at p. 4.) When given the opportunity, 2 Petitioner made no objection to the constitutional sufficiency of the 1997 judgment of 3 conviction, which was admitted into evidence, and the court confirmed that the judgment 4 of conviction passed constitutional muster. (Id., at p. 4.) The court then allowed the 5 defense to argue in mitigation of punishment, during which defense counsel made 6 reference to Petitioner’s letter. (Id.) The court imposed a sentence of 72 to 180 months 7 in the custody of the Nevada Department of Corrections, as well as monetary fines. (Id., 8 at p. 6; Exhibit 10.) The judgment of conviction was entered on June 29, 2006. (Exhibit 9 10.) 10 11 B. Direct Appeal 1. Nevada Supreme Court Case No. 47775 12 Petitioner filed a timely notice of appeal on July 25, 2006, which was issued 13 Nevada Supreme Court Case No. 47775. (Exhibit 11.) By and through counsel, 14 Petitioner filed a fast track statement on September 14, 2006. (Exhibit 19.) The basis of 15 the appeal was that Petitioner had been denied his right to allocution at the sentencing 16 hearing, in violation of NRS 176.015(2)(b). (Id.) NRS 176.015(2)(b) provides that 17 “[b]efore imposing sentence, the court shall . . . [a]ddress the defendant personally and 18 ask him if he wishes to make a statement in his own behalf and to present any 19 information in mitigation of punishment.” Petitioner claimed that the state district court 20 never afforded him an opportunity to make a statement. (Exhibit 19.) On November 9, 21 2006, the Nevada Supreme Court entered an order of affirmance in Case No. 47775. 22 (Exhibit 21.) The Nevada Supreme Court concluded that “although the district court did 23 not comply with NRS 176.15(2)(b), Larson cannot demonstrate that the district court’s 24 failure amounted to reversible plain error.” (Exhibit 21, at p. 2 (footnote omitted.)). The 25 Nevada Supreme Court affirmed Petitioner’s conviction because Petitioner failed to 26 object to any error in the trial court and he did not point to any specific information that 27 would have affected his sentence. (Id.) Petitioner filed a motion for rehearing on 28 November 21, 2006. (Exhibit 22.) On December 21, 2006, the Nevada Supreme Court 3 1 denied a rehearing. (Exhibit 24.) Remittitur issued in Case No. 47775 on January 16, 2 2007. (Exhibit 29.) On December 28, 2006, Petitioner filed a petition for en banc 3 reconsideration (Exhibit 25), which the Nevada Supreme Court denied by order filed 4 March 1, 2007 (Exhibit 34). 2. 5 Nevada Supreme Court Case No. 48751 6 On January 11, 2007, Petitioner filed a second notice of appeal, acting in pro per. 7 (Exhibit 27.) The case was assigned Nevada Supreme Court Case No. 48751. On 8 February 15, 2007, the Nevada Supreme Court dismissed the appeal in Case No. 9 48571 for lack of jurisdiction. (Exhibit 33.) Remittitur issued in Case No. 48751 on 10 March 13, 2007. (Exhibit 35.) 11 C. State Post-Conviction Habeas Proceedings 12 On April 6, 2007, Petitioner filed a post-conviction habeas petition in the state 13 district court. (Exhibit 37.) By order filed July 9, 2007, the state district court appointed 14 counsel to represent Petitioner on his post-conviction habeas petition. (Exhibit 43.) On 15 August 30, 2007, counsel filed a supplemental post-conviction habeas petition. (Exhibit 16 44.) The supplemental state petition asserted the following grounds for relief: 17 18 19 20 21 22 23 Petitioner was deprived of effective assistance of counsel within the meaning of the 6th and 14th Amendments to the United States Constitution. (a) Ground One: Counsel failed to prepare and investigate. Due to failure to investigate, Petitioner was convicted of a felony rather than a misdemeanor DUI. Failure to move to dismiss the felony charge constituted ineffective assistance of counsel. Failure to litigate the ability to enhance this charge to a felony due to violation of the 5th Amendment Due Process Clause and the Ex Post Facto Clause of the U.S. Const. art. I, § 9, cl. 3; Nev. Const. art. 1, § 15 and the 14th Amendment was below the standard of practicing attorneys in Washoe County. 26 (b) Ground Two: Counsel was ineffective at sentencing for failing to insure that the Petitioner had an opportunity to address the sentencing court in mitigation of sentence. See argument herein for additional facts. Counsel failed to correct errors with the Presentence Report which allowed the District Court to rely on suspect evidence in rendering the maximum sentence available at law. 27 (Exhibit 44, at pp. 4-5.) Petitioner also asserted Ground Three, in which he argued that 28 counsel failed to file a timely notice of appeal, for which he sought Lozada relief. (Id., at 24 25 4 1 p. 5.) Petitioner subsequently withdrew Ground Three at the evidentiary hearing, 2 because Petitioner’s counsel in fact perfected and pursued a direct appeal. (Exhibit 55, 3 at p. 3.) 4 On January 6, 2010, the state district court held an evidentiary hearing on the 5 supplemental post-conviction habeas petition. (Exhibit 55.) The state district judge 6 issued a ruling from the bench, denying the petition in its entirety. (Exhibit 55, at pp. 56- 7 57.) On March 9, 2010, the state district court entered written findings of fact, 8 conclusions of law, and judgment. (Exhibit 56.) The court denied relief on Ground One, 9 finding that Petitioner failed to meet both prongs of Strickland v. Washington, 466 U.S. 10 668 (1984), because the use of the 1997 conviction did not run afoul of the Ex Post 11 Facto clause of the United States Constitution, the 1997 conviction’s use as an 12 enhancement was a collateral consequence that the trial court was not required to 13 inform Petitioner of in 1997, and the use of the 1997 conviction did not violate the 1997 14 plea agreement. (Exhibit 56, at pp. 1-5.) The court denied relief on Ground Two 15 because Petitioner failed to meet both prongs of Strickland regarding errors in the 16 presentence investigation report and he failed to meet the prejudice prong of Strickland 17 regarding his claim that he was deprived of his right to allocution. (Id., at pp. 5-6.) 18 On April 20, 2010, Petitioner filed a timely notice of appeal from the denial of his 19 post-conviction habeas petition. (Exhibit 59.) The case was assigned Nevada Supreme 20 Court Case No. 55856. Petitioner, represented by counsel on appeal, filed a fast track 21 statement on May 25, 2010. (Exhibit 69.) The fast track statement raised the following 22 four grounds for relief: 23 24 25 26 27 28 1. The District Court abused its discretion when it dismissed this postconviction action and refused to grant relief to Mr. Larson. 2. Failure to advise Mr. Larson in 1997 that any future DUI related offense would net him a felony conviction and subsequent use for enhancement purposes thereof, invalidated the 1997 plea under the Due Process Clause of the 5th Amendment. 3. The State violated the standing plea bargains of Mr. Larson. Prosecution under 2005 amendment to NRS 284.3792 violated the ex post facto Clause of the U.S. Constitution Art. I, § 10, and Nevada Constitution, Art. 1, § 15. 5 1 4. Counsel was ineffective under the 6th and 14th Amendments when counsel failed to allow his client to address the sentencing court. 2 (Exhibit 69, at p. 4.) On September 29, 2010, the Nevada Supreme Court affirmed the 3 denial of the post-conviction habeas corpus petition. (Exhibit 73.) The Nevada Supreme 4 Court found that: (1) the 1997 plea agreement was not breached; (2) the use of the 5 1997 conviction as an enhancement did not constitute a violation of the Ex Post Facto 6 Clause; (3) Petitioner’s claim regarding allocution failed because he did not provide any 7 information that “may have lead to a more lenient sentence”; and (4) he did not 8 demonstrate that trial and appellate counsel’s performance resulted in prejudice under 9 Strickland. (Exhibit 73.) Remittitur issued in Case No. 55856 on October 27, 2010. 10 (Exhibit 74.) 11 D. Federal Habeas Proceedings 12 Petitioner signed and submitted his federal habeas petition to this Court on 13 January 24, 2011. (Dkt. no. 1.) The petition contains three grounds for relief, with sub- 14 parts. Respondents moved to dismiss the petition. (Dkt. no. 8.) By order filed December 15 14, 2011, the Court issued an order, granting in part and denying in part, the motion to 16 dismiss. (Dkt. no. 15.) The Court denied the motion to dismiss Grounds 1(a), 1(b), and 17 1(d) of the petition. (Id.) The Court ruled that the portion of Ground 1 that respondents 18 identified as Ground 1(d) was actually part of Ground 1(a). (Id.) The Court ruled that the 19 following claims were unexhausted: (1) Ground 1(c), in which Petitioner alleges that 20 counsel failed to prepare and investigate; (2) Ground 2(b), in which Petitioner alleges 21 that counsel failed to correct errors in the presentence report; and (3) the claim asserted 22 in a portion of Ground 1 and Ground 3, regarding an untimely filing of a notice of appeal 23 on direct appeal. (Id.) Petitioner was given options regarding the unexhausted claims, 24 pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982) and Rhines v. Weber, 544 U.S. 25 269 (2005). (Id.) Petitioner filed a motion for a stay. (Dkt. no. 16.) The Court denied 26 Petitioner’s motion without prejudice to renewing it, as the motion was devoid of any 27 argument. (Dkt. no. 18.) On May 9, 2012, Petitioner filed a sworn declaration 28 abandoning his unexhausted grounds, including Ground 1(c), 2(b), and the claim 6 1 asserted in a portion of Grounds 1 and 3, regarding an untimely filing of a notice of 2 appeal on direct appeal. (Dkt. no. 19.) On June 8, 2012, respondents filed an answer to 3 the remaining grounds of the petition. (Dkt. no. 20.) Petitioner was given the opportunity, 4 but did not file a reply to the answer. 5 II. FEDERAL HABEAS CORPUS STANDARDS 6 The Antiterrorism and Effective Death Penalty Act (“AEDPA”), at 28 U.S.C. § 7 2254(d), provides the legal standard for the Court’s consideration of this habeas 8 petition: 9 10 11 12 13 14 15 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 16 The AEDPA “modified a federal habeas court’s role in reviewing state prisoner 17 applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court 18 convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 19 685, 693-694 (2002). A state court decision is contrary to clearly established Supreme 20 Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a 21 rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the 22 state court confronts a set of facts that are materially indistinguishable from a decision 23 of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme 24 Court’s] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. 25 Taylor, 529 U.S. 362, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 26 (2002)). The formidable standard set forth in section 2254(d) reflects the view that 27 habeas corpus is “‘a guard against extreme malfunctions in the state criminal justice 28 systems,’ not a substitute for ordinary error correction through appeal.” Harrington v. 7 1 Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 2 U.S. 307, 332 n.5 (1979)). 3 A state court decision is an unreasonable application of clearly established 4 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court 5 identifies the correct governing legal principle from [the Supreme Court’s] decisions but 6 unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer v. 7 Andrade, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The “unreasonable 8 application” clause requires the state court decision to be more than merely incorrect or 9 erroneous; the state court’s application of clearly established federal law must be 10 objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). In determining 11 whether a state court decision is contrary to, or an unreasonable application of federal 12 law, this Court looks to the state courts’ last reasoned decision. See Ylst v. 13 Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 14 1079 n.2 (9th Cir. 2000), cert. denied, 534 U.S. 944 (2001). 15 In a federal habeas proceeding, “a determination of a factual issue made by a 16 State court shall be presumed to be correct,” and the Petitioner “shall have the burden 17 of rebutting the presumption of correctness by clear and convincing evidence.” 28 18 U.S.C. § 2254(e)(1). If a claim has been adjudicated on the merits by a state court, a 19 federal habeas Petitioner must overcome the burden set in § 2254(d) and (e) on the 20 record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1400 21 (2011). 22 III. DISCUSSION 23 A. Ground 1 24 Petitioner alleges that counsel was ineffective for: (a) failing to challenge the use 25 of the 1997 conviction as an enhancement, which Petitioner alleges constituted a 26 breach of the 1997 plea agreement; (b) failing to challenge the application of the 2005 27 amendment to NRS 484.3792 as a violation of the Ex Post Facto Clause; (c) failure to 28 prepare and investigate; and (d) failure to file a motion to suppress. (Dkt. no. 1, at pp. 38 1 6.) By order filed December 14, 2011, this Court ruled that Ground 1(c) was 2 unexhausted, and Petitioner filed a sworn declaration formally abandoning Ground 1(c). 3 (Dkt. nos. 15 & 19.) The Court further ruled that Ground 1(d) is, in fact, part of 4 Petitioner’s claim of ineffective assistance of counsel in the 2006 case for counsel’s 5 failure to object to the use of the 1997 felony DUI conviction as an enhancement based 6 on a breach of the 1997 plea agreement, and as such, Ground 1(d) is construed as part 7 of Ground 1(a) of the federal petition. (Dkt. no. 15, at pp. 6-7.) Therefore, the remaining 8 sub-parts of Ground 1 are Grounds 1(a) and 1(b). (Id.) 9 1. Ground 1(a) 10 Ground 1(a) of the federal petition includes three sub-claims for relief: (1) a claim 11 for ineffective assistance of counsel in the 2006 case for counsel’s failure to object to 12 the use of the 1997 felony DUI conviction as an enhancement based on a breach of the 13 1997 plea agreement; (2) a challenge to the use of the 1997 conviction as an 14 enhancement because Petitioner did not receive effective assistance of counsel in 15 entering his plea to a felony DUI in 1997; and (3) a challenge to the use of the 1997 16 conviction as an enhancement based on a breach of the 1997 plea agreement. 17 a. Ground 1(a)(1) 18 Petitioner claims that he received ineffective assistance of counsel in the 2006 19 case due to counsel’s failure to object to the use of the 1997 felony DUI conviction as 20 an enhancement, which he asserts should not have been used. Petitioner also claims 21 that counsel in the 2006 case was ineffective for not challenging the use of his 1997 22 conviction as an enhancement because the use of the 1997 conviction for that purpose 23 breached the 1997 plea agreement. 24 i. Ineffective assistance of counsel standard 25 Ineffective assistance of counsel claims are governed by the two-part test 26 announced in Strickland v. Washington, 466 U.S. 668. In Strickland, the Supreme Court 27 held that a Petitioner claiming ineffective assistance of counsel has the burden of 28 demonstrating that (1) counsel’s performance was unreasonably deficient, and (2) that 9 1 the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362, 2 390-391 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the 3 defendant must show that counsel’s representation fell below an objective standard of 4 reasonableness. Id. To establish prejudice, the defendant must show that there is a 5 reasonable probability that, but for counsel’s unprofessional errors, the result of the 6 proceeding would have been different. Id. A reasonable probability is “probability 7 sufficient to undermine confidence in the outcome.” Id. Additionally, any review of the 8 attorney’s performance must be “highly deferential” and must adopt counsel’s 9 perspective at the time of the challenged conduct, in order to avoid the distorting effects 10 of hindsight. Strickland, 466 U.S. at 689. It is the Petitioner’s burden to overcome the 11 presumption that counsel’s actions might be considered sound trial strategy. Id. 12 Ineffective assistance of counsel under Strickland requires a showing of deficient 13 performance of counsel resulting in prejudice, “with performance being measured 14 against an ‘objective standard of reasonableness,’. . . ‘under prevailing professional 15 norms.’” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quotations omitted). If the state 16 court has already rejected an ineffective assistance claim, a federal habeas court may 17 only grant relief if that decision was contrary to, or an unreasonable application of the 18 Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a strong 19 presumption that counsel’s conduct falls within the wide range of reasonable 20 professional assistance. Id. 21 The United States Supreme Court has described federal review of a state 22 supreme court’s decision on a claim of ineffective assistance of counsel as “doubly 23 deferential.” Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (quoting Knowles v. 24 Mirzayance, 556 U.S. 111, 112-113, 129 S.Ct. 1411, 1413 (2009)). In Cullen v. 25 Pinholster, the Supreme Court emphasized that: “We take a ‘highly deferential’ look at 26 counsel’s performance . . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403 27 (internal citations omitted.) Moreover, federal habeas review of an ineffective assistance 28 of counsel claim is limited to the record before the state court that adjudicated the claim 10 1 on the merits. Cullen v. Pinholster, 131 S.Ct. at 1398-1401. The United States Supreme 2 Court has specifically reaffirmed the extensive deference owed to a state court’s 3 decision regarding claims of ineffective assistance of counsel: 10 Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” id. at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S. at ___, 129 S.Ct. at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S. at ___, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard. 11 Harrington v. Richter, 131 S.Ct. at 788. “A court considering a claim of ineffective 12 assistance of counsel must apply a ‘strong presumption’ that counsel’s representation 13 was within the ‘wide range’ of reasonable professional assistance.” Id. at 787 (quoting 14 Strickland, 466 U.S. at 689). “The question is whether an attorney’s representation 15 amounted to incompetence under prevailing professional norms, not whether it deviated 16 from best practices or most common custom.” Id. (internal quotations and citations 17 omitted.) 4 5 6 7 8 9 18 ii. Strickland Application to Ground 1(a)(1) 19 In the instant case, the Nevada Supreme Court recited the findings made by the 20 state district court following an evidentiary hearing on Petitioner’s post-conviction state 21 habeas petition. The Court found that “Larson’s 1997 guilty plea agreement did not limit 22 the use of his 1997 felony DUI conviction for enhancement purposes, he was never 23 advised that the conviction would be treated as anything other than a felony conviction, 24 and the application of the 2005 amendment to NRS 484.3792 did not breach the 1997 25 plea agreement.” (Exhibit 73, at pp. 1-2; Exhibit 56.) The Nevada Supreme Court 26 concluded that “Larson failed to show that trial and appellate counsels’ performance 27 was prejudicial,” citing Strickland v. Washington, 466 U.S. at 687. (Exhibit 73, at p. 2.) 28 The Nevada Supreme Court ruled that these findings were supported by the record and 11 1 “conclude[d] that the district court did not err by denying Larson’s ineffective assistance 2 claims.” (Exhibit 73, at p. 2.) The factual findings of the state court are presumed 3 correct. 28 U.S.C. § 2254(e)(1). The Nevada Supreme Court cited to and reasonably 4 applied the appropriate federal standard to Petitioner’s ineffective assistance of counsel 5 claims. Petitioner has failed to demonstrate that his counsel’s performance was 6 deficient or that he was prejudiced under Strickland. Petitioner has failed to meet his 7 burden of proving that the Nevada Supreme Court’s ruling was contrary to, or involved 8 an unreasonable application of, clearly established federal law, as determined by the 9 United States Supreme Court, or that the ruling was based on an unreasonable 10 determination of the facts in light of the evidence presented in the state court 11 proceeding. This Court denies habeas relief as to Ground 1(a)(1). 12 b. Ground 1(a)(2) 13 Petitioner challenges the use of the 1997 conviction as an enhancement, alleging 14 that he did not receive the effective assistance of counsel when entering his plea to a 15 felony DUI in 1997. Specifically, Petitioner seeks to challenge his 1997 conviction on the 16 basis that he allegedly was not told, at the time he pled guilty in 1997, that the 1997 17 conviction could be used against him as an enhancement later. 18 The United States Supreme Court has held that “when a criminal defendant has 19 solemnly admitted in open court that he is, in fact, guilty of the offense with which he is 20 charged, he may not thereafter raise independent claims relating to the deprivation of 21 constitutional rights that occurred prior to the entry of judgment.” Tollett v. Henderson, 22 411 U.S. 258, 267 (1973). A guilty plea entered by a prisoner represents a break in the 23 chain of events which precedes the plea in the criminal process, and as such, operates 24 to preclude a prisoner from raising independent claims relating to the deprivation of 25 constitutional rights that allegedly occurred prior to the entry of the plea. Burrows v. 26 Engle, 545 F.3d 552, 553 (6th Cir. 1976). “[W]hen the judgment of conviction upon a 27 guilty plea has become final and the offender seeks to reopen the proceeding, the 28 inquiry is ordinarily confined to whether the underlying plea was both counseled and 12 1 voluntary. If the answer is in the affirmative then conviction and the plea, as a general 2 rule, forecloses collateral attack.” United States v. Broce, 488 U.S. 563, 569 (1989). 3 In this case, Petitioner pled guilty to the offense of felony DUI in 2006. (Exhibits 4 4 & 5.) When he did so, he waived any opportunity to challenge the use of the 1997 5 conviction as an enhancement on the basis that the 1997 conviction is invalidated 6 because his prior attorney did not advise him that the 1997 conviction could be used 7 against him as an enhancement in the future. Accordingly, this claim is barred from 8 federal review under Tollett. 9 Additionally, even if this claim was not barred by Tollet, Petitioner has not 10 demonstrated that his counsel in the 1997 case was ineffective. The Strickland 11 standard, as set forth earlier in this order, applies to this claim. After an evidentiary 12 hearing, the state district court denied Petitioner’s claim that his 1997 conviction was 13 invalid because he had not been advised of the fact that the 1997 conviction could be 14 used against him as an enhancement in the future. (Exhibit 56.) The state district court 15 noted that the use of his enhancement was a collateral consequence of his conviction, 16 and the alleged failure to advise him of the collateral consequences did not entitle him 17 to relief. (Exhibit 56, at pp. 3-4.) The Nevada Supreme Court affirmed the denial of 18 relief. (Exhibit 73.) 19 Petitioner cannot show that the Nevada Supreme Court’s denial of relief was an 20 unreasonable application of Strickland. Petitioner’s own testimony shows that his 21 attorney did not misadvise him in 1997. (See Exhibit 55, at pp. 8-9, 19.) As the state 22 district court’s order notes, Nevada law does not require a defendant to be advised of 23 collateral consequences of a conviction prior to entry of a guilty plea. (Exhibit 56, at pp. 24 3-4 (citing Dixon v. Nevada, 103 Nev. 272, 274, n.2, 737 P.2d 1162, 1164, n.2 (1987).) 25 The factual findings of the state court are presumed correct. 28 U.S.C. § 2254(e)(1). 26 The Court is unaware of any clearly established federal law that requires finding that 27 counsel’s failure to advise a defendant that a conviction could be used for future 28 enhancement purposes prior to a defendant entering a guilty plea constitutes the 13 1 ineffective assistance of counsel. Petitioner has failed to demonstrate that his counsel’s 2 performance in connection with the 1997 conviction was deficient or that he was 3 prejudiced under Strickland. Petitioner has failed to meet his burden of proving that the 4 state court’s ruling was contrary to, or involved an unreasonable application of, clearly 5 established federal law, as determined by the United States Supreme Court, or that the 6 ruling was based on an unreasonable determination of the facts in light of the evidence 7 presented in the state court proceeding. Federal habeas relief is denied on Ground 8 1(a)(2). 9 c. Ground 1(a)(3) 10 Petitioner challenges the use of the 1997 conviction as an enhancement for his 11 2006 conviction, based on his contention that the State breached the 1997 plea 12 agreement. “When a criminal defendant has solemnly admitted in open court that he is, 13 in fact, guilty of the offense with which he is charged, he may not thereafter raise 14 independent claims relating to the deprivation of constitutional rights that occurred prior 15 to the entry of judgment.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). A guilty plea 16 entered by a prisoner represents a break in the chain of events which precedes the plea 17 in the criminal process, and as such, operates to preclude a prisoner from raising 18 independent claims relating to the deprivation of constitutional rights that allegedly 19 occurred prior to the entry of the plea. Burrows v. Engle, 545 F.3d 552, 553 (6th Cir. 20 1976). “[W]hen the judgment of conviction upon a guilty plea has become final and the 21 offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether 22 the underlying plea was both counseled and voluntary. If the answer is in the affirmative 23 then conviction and the plea, as a general rule, forecloses collateral attack.” United 24 States v. Broce, 488 U.S. 563, 569 (1989). 25 In this case, Petitioner pled guilty to the offense of felony DUI in 2006. (Exhibits 4 26 & 5.) When he did so, Petitioner waived any opportunity to challenge the use of his 27 1997 conviction as an enhancement on the basis that the State breached the 1997 plea 28 agreement. Accordingly, this claim is barred from federal review under Tollett. 14 1 Additionally, this Court finds that the use of the 1997 conviction as an 2 enhancement for the 2006 conviction was not a breach of the 1997 conviction. The 3 United States Supreme Court has noted that a guilty plea “must, of course, be voluntary 4 and knowing and if it was induced by promises, the essence of those promises must in 5 some way be made known.” Santobello v. New York, 404 U.S. 257, 261-62 (1971). In 6 light of this, the Court found that “when a plea rests in any significant degree on a 7 promise or agreement of the prosecutor, so that it can be said to be part of the 8 inducement or consideration, such promise must be fulfilled.” Id. 9 In reviewing Petitioner’s assertion that the use of the 1997 conviction constituted 10 a breach of the 1997 plea agreement, the state district court found that “Larson’s [1997] 11 plea agreement did not limit the 1997 felony DUI conviction for any enhancement 12 purposes. Further, the record of the 1997 proceedings does not demonstrate that 13 Larson was ever advised that the 1997 felony DUI conviction would be treated as 14 anything other than a felony conviction.” (Exhibit 56, at p. 4.) As a result, the state 15 district court denied relief on this point, and the Nevada Supreme Court affirmed the 16 denial of relief. (Exhibits 56 & 73.) Again, the factual findings of the state court are 17 presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has not shown that his guilty plea 18 in the 1997 conviction included limitations on the State’s ability to use that conviction as 19 an enhancement in the future, and has not shown that his plea agreement included an 20 agreement that his conviction would be treated as anything other than a felony. 21 Petitioner has failed to meet his burden of proving that the state court’s ruling was 22 contrary to, or involved an unreasonable application of, clearly established federal law, 23 as determined by the United States Supreme Court, or that the ruling was based on an 24 unreasonable determination of the facts in light of the evidence presented in the state 25 court proceeding. This Court denies habeas relief as to Ground 1(a)(3). 26 2. Ground 1(b) 27 Petitioner alleges that counsel was ineffective for failing to challenge the 28 application of the 2005 amendment to NRS 484.3792 as a violation of the Ex Post Facto 15 1 Clause. Petitioner also appears to allege a substantive Ex Post Facto claim. Ground 2 1(b) also contains a reference to the Equal Protection Clause. a. 3 Substantive Ex Post Facto claim is barred by Tollett 4 “When a criminal defendant has solemnly admitted in open court that he is, in 5 fact, guilty of the offense with which he is charged, he may not thereafter raise 6 independent claims relating to the deprivation of constitutional rights that occurred prior 7 to the entry of judgment.” Tollett v. Henderson, 411 U.S. at 267. As discussed above, a 8 prisoner’s guilty plea represents a break in the chain of events which precedes the plea 9 in the criminal process, and as such, operates to preclude a prisoner from raising 10 independent claims relating to the deprivation of constitutional rights that allegedly 11 occurred prior to the entry of the plea. Burrows v. Engle, 545 F.3d at 553. “[W]hen the 12 judgment of conviction upon a guilty plea has become final and the offender seeks to 13 reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea 14 was both counseled and voluntary. If the answer is in the affirmative then conviction and 15 the plea, as a general rule, forecloses collateral attack.” United States v. Broce, 488 16 U.S. 563 at. 17 In this case, Petitioner pled guilty to the offense of felony DUI in 2006. (Exhibits 4 18 & 5.) When he did so, Petitioner waived any opportunity to challenge the use of his 19 1997 conviction as a violation of the Ex Post Facto Clause. This claim is barred from 20 federal review under Tollett. 21 b. No violation of Ex Post Facto 22 Even assuming the claim was not barred by Tollett, this Court finds that there 23 was no violation of Ex Post Facto. Petitioner alleges that Nevada violated the Ex Post 24 Facto Clause of the United States Constitution by using his 1997 felony DUI conviction 25 to enhance his 2006 DUI to a felony on the basis that the 1997 conviction occurred 26 before the Nevada Legislature amended NRS 484.3792 in 2005. 27 The Ex Post Facto Clause “is aimed at laws that ‘retroactively alter the definition 28 of crimes or increase the punishment for criminal acts.” Miller v. Ignacio, 112 Nev. 930, 16 1 933, 921 P.2d 882, 883 (1996), citing Collins v. Youngblood, 497 U.S. 37, 43 (1990) 2 (citation omitted). The United States Supreme Court has established a two-part test to 3 address Ex Post Facto claims. A law violates the Ex Post Facto Clause if it is retroactive 4 – it applies “to events occurring before its enactment,” and if it is detrimental – it 5 “produces a sufficient risk of increasing the measure of punishment attached to the 6 covered crimes.” Weaver v. Graham, 450 U.S. 24, 29 (1981); Cal. Dept. of Corrections 7 v. Morales, 514 U.S. 499, 504 (1995); Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 8 2003). “The inquiry looks to the challenged provision, and not to any special 9 circumstances that may mitigate its effect on the particular individual. Weaver, 450 U.S. 10 at 33; Nulph v. Faatz, 27 F.3d 451, 455-56 (9th Cir. 1994). Changes in the law that are 11 merely procedural will withstand scrutiny, as will statutes that leave unaffected the 12 “crime for which . . . defendant was indicted, the punishment prescribed therefor, and 13 the quantity or the degree of proof necessary to establish his guilt.” Dobbert v. Florida, 14 432 U.S. 282, 294 (1977). A law does not violate the Ex Post Facto Clause if it “creates 15 only the most speculative and attenuated risk of increasing the measure of punishment 16 attached to the covered crimes.” Morales, 514 U.S. at 513. 17 In addressing the Ex Post Facto issue, the state district court noted that the 2005 18 amendments to NRS 484.3792 did not retrospectively redefine the offense of DUI in 19 Nevada. (Exhibit 56, at pp. 1-2.) On May 2, 2006, when Petitioner decided to consume 20 alcohol and then operate an automobile on a public road in Nevada, the law on that 21 date provided that what Petitioner was doing constituted a felony. (Exhibit 55, at p. 43.) 22 Petitioner’s conduct that occurred on May 2, 2006, was the basis for the criminal 23 charges brought against him in 2006. In the eyes of Nevada law, as it existed on May 2, 24 2006, Petitioner’s conduct that day was accompanied by an increased level of 25 culpability and demonstrated that Petitioner was a greater danger to the public, because 26 he already had a felony DUI conviction from 1997. 27 In 1997, Petitioner pled guilty to felony DUI based upon the fact that he had three 28 prior DUI offenses within a period of seven years. (Exhibits 55A through 55E.) There is 17 1 no question that Petitioner’s 1997 DUI was a felony under Nevada law in 1997. (Exhibit 2 55E.) In 2005, the Nevada Legislature made it the law in Nevada that if you have ever 3 been convicted of a felony DUI, no matter when it happened, any subsequent DUI is a 4 Class B felony. That is precisely what the Nevada Legislature intended when it 5 amended NRS 484.3792 in 2005, and the law clearly reflected that policy when 6 Petitioner decided to drive while under the influence of alcohol on May 2, 2006. See 7 2005 Nev. Stat. 617 (Sect. 14. “The mandatory provisions of this act apply to offenses 8 committed before October 1, 2005, for the purpose of determining whether a person is 9 subject to the provisions of subsection 2 of NRS 484.3792, as amended by this act . . 10 .”.) As a result, on May 2, 2006, Petitioner was presumed to know that he was 11 committing a Class B felony that carried with it a possible penalty of anywhere from 2 to 12 15 years in the custody of the Nevada Department of Corrections. Id. at 608. The 13 State’s use of Petitioner’s 1997 felony DUI conviction to enhance his 2006 DUI to a 14 felony does not violate the Ex Post Facto Clause, and the Nevada state courts acted 15 reasonably in denying relief. See Weaver v. Graham, 450 U.S. at 29; Morales, 514 U.S. 16 at 513. Federal habeas relief is denied on this claim. c. 17 Counsel was Not Ineffective for Failing to Raise an Ex Post Facto Challenge 18 19 Petitioner asserts that counsel was insufficient for failing to raise an Ex Post 20 Facto challenge to the use of his 1997 DUI conviction for purposes of enhancement of 21 his 2006 DUI conviction. The Strickland standard, as set forth earlier in this order, 22 applies to this claim. 23 The state district court rejected Petitioner’s claim of ineffective assistance of 24 counsel. The state district court relied on a state law case with similar facts, Dixon v. 25 Nevada, 103 Nev. 272, 274, 737 P.2d 1162, 1164 (1987), wherein the Nevada Supreme 26 Court addressed a change in the time period within which a prior offense had to occur 27 for it to be used for enhancement purposes. There, the Nevada Supreme Court noted 28 that “the third-offense felony provision is not an ex post facto law simply because 18 1 Dixon’s earlier conviction antedated its enactment. On the day Dixon elected to commit 2 the offense here under consideration, reference to the statute would have indicated 3 precisely the penalty he risked.” Dixon, 103 Nev. at 274, 737 P.2d at 1164. The only 4 distinction here is that the passing of AB 421 in the 2005 Nevada Legislative Session 5 did away with time restraints for a prior felony DUI conviction to enhance a subsequent 6 DUI to a felony. 7 At the evidentiary hearing, Petitioner’s plea counsel testified that the defense bar 8 appeared to be in agreement that the Dixon case was on point with any potential Ex 9 Post Facto claims regarding the 2005 amendment to NRS 484.3792. (Exhibit 55 at pp. 10 27-28) (plea counsel’s testimony discussing the state of the law with respect to NRS 11 484.3792 around the time that Petitioner pled guilty.) This demonstrates that counsel’s 12 decision not to raise an Ex Post Facto challenge was a reasoned strategic judgment. 13 The Nevada Supreme Court affirmed the state district court’s denial of Petitioner’s 14 claim. (Exhibit 73.) Because there was no Ex Post Facto violation, as discussed earlier 15 in this order, raising such a claim would not have affected the outcome of the 16 proceeding. Petitioner cannot show deficient performance or prejudice under the 17 Strickland standard, therefore, he is not entitled to habeas relief on the ineffective 18 assistance of counsel claim. 19 d. Equal protection claim 20 As to Petitioner’s reference to equal protection, Petitioner fails to state a claim. 21 Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases, a federal habeas 22 petition must specify all grounds for relief and “state the facts supporting each ground.” 23 The Equal Protection Clause is essentially a direction that all similarly situated persons 24 be treated equally under the law. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 25 U.S. 432, 439 (1985). In order to state an equal protection claim, a plaintiff must allege 26 facts demonstrating that defendants acted with the intent and purpose to discriminate 27 against him based upon membership in a protected class, or that defendants 28 purposefully treated him differently than similarly situated individuals without any 19 1 rational basis for the disparate treatment. Lee v. City of Los Angeles, 250 F.3d 668, 686 2 (9th Cir. 2001); see also Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 3 In this case, Petitioner makes a passing reference to the Equal Protection 4 Clause, however, Petitioner does not include any allegations that he was treated 5 differently than anyone else similarly situated to him. As such, this claim is conclusory 6 and does not entitle Petitioner to federal habeas relief. 7 As to all sub-parts of Ground 1(b), Petitioner has failed to meet his burden of 8 proving that the state court’s ruling was contrary to, or involved an unreasonable 9 application of, clearly established federal law, as determined by the United States 10 Supreme Court, or that the ruling was based on an unreasonable determination of the 11 facts in light of the evidence presented in the state court proceeding. This Court denies 12 habeas relief as to all claims made in Ground 1(b). 13 B. Ground 2 14 Petitioner asserts that the state district court failed to comply with NRS 176.015, 15 which requires that the sentencing court allow a defendant to address the court 16 personally and provide a statement in mitigation. Petitioner also alleges that counsel 17 was ineffective for failing to ensure that Petitioner had an opportunity to address the 18 court regarding mitigation at the sentencing hearing.3 1. 19 Violation of NRS 176.015 is not cognizable in federal habeas 20 Petitioner’s claim that the trial court failed to comply with NRS 176.015 fails to 21 state a cognizable claim for federal habeas corpus relief. NRS 176.015(2)(b) provides 22 that “[b]efore imposing sentence, the court shall . . . [a]ddress the defendant personally 23 and ask him if he wishes to make a statement in his own behalf and to present any 24 information in mitigation of punishment.” 25 26 27 28 Unless an issue of federal constitutional or statutory law is implicated by the facts 3 In Ground 2, Petitioner further alleges that counsel failed to correct errors in the presentence report. However in the order of December 14, 2011, this Court ruled that claim is unexhausted, and Petitioner later filed a sworn declaration formally abandoning the claim. (Dkt. nos. 15 & 19.) 20 1 presented, the claim is not cognizable under federal habeas corpus. Estelle v. McGuire, 2 502 U.S. 62, 68 (1991). A state law issue cannot be mutated into one of federal 3 constitutional law merely by invoking the specter of a due process violation. Langford v. 4 Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881 (1997). Petitioner 5 must demonstrate the existence of federal constitutional law which establishes the right 6 in question. In the instant case, Petitioner does not allege violation of a federal 7 constitutional right. Petitioner contends that he was not given a full opportunity to 8 address the court personally and give a statement of mitigation at sentencing, in 9 violation of NRS 176.015. Petitioner concedes in his petition that “the United States 10 Supreme Court has declared that the right to allocution is not of constitutional derivation 11 or dimension . . . .” (Dkt. no. 1, at p. 9.) To the extent that Petitioner asserts that the 12 state district court improperly applied NRS 176.015, Ground 2 fails to state a cognizable 13 claim for federal habeas relief. 14 2. Ineffective assistance of counsel claim regarding allocution 15 On direct appeal, Petitioner raised the substantive claim that he was denied his 16 right of allocution. The Nevada Supreme Court rejected Petitioner’s claim, ruling that 17 “Larson fails to explain with any specificity what he might have said to the district at the 18 sentencing hearing that may have affected his sentence.” (Exhibit 21, at p. 2.) In his 19 state habeas petition, Petitioner raised the same claim he asserts in this action, alleging 20 that counsel was ineffective for failing to ensure that he was afforded an opportunity to 21 address the court regarding mitigation at the sentencing hearing. The state district court 22 denied this claim and then stated: 23 24 25 26 27 28 Assuming for a moment that Mr. Hylin [Petitioner’s plea attorney] should have objected or insisted that Larson be permitted to speak in allocution, Larson, once again, failed to explain with any specificity what he might have said to the district court at the sentencing hearing that may have effected the outcome. Moreover, the Court notes that, when the sentencing hearing began, Judge Robinson stated that he had reviewed the letter than Larson submitted in anticipation of the sentencing hearing. In short, Judge Robinson was well aware of Larson’s thoughts and feelings. To be sure, the Court knows a narrated statement in allocution by a defendant may enjoy greater elegance or eloquence than his written words, but where, as here, that same defendant, now a habeas Petitioner, 21 1 2 has not provided the Court with additional information that may have led to a more lenient sentence, he has simply failed to prove counsel’s error was prejudicial under Strickland. 3 (Exhibit 56, at p. 6.) The Nevada Supreme Court affirmed the state district court’s denial 4 of the claim, ruling that the district court’s factual findings were supported by substantial 5 evidence. (Exhibit 72, at p. 2.) The factual findings of the state court are presumed 6 correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to demonstrate that his counsel’s 7 performance was deficient or that he was prejudiced under Strickland. Petitioner has 8 failed to meet his burden of proving that the state court’s ruling was contrary to, or 9 involved an unreasonable application of, clearly established federal law, as determined 10 by the United States Supreme Court, or that the ruling was based on an unreasonable 11 determination of the facts in light of the evidence presented in the state court 12 proceeding. This Court denies federal habeas relief on Ground 2. 13 C. Ground 3 14 Petitioner asserts in a portion of Ground 3 (as well as a portion of Ground 1) that 15 counsel was ineffective for filing an untimely notice of appeal on direct appeal. By order 16 filed December 14, 2011, this Court ruled that the portions of Grounds 1 and 3 alleging 17 that counsel failed to file a timely notice of appeal on direct appeal were unexhausted 18 because Petitioner withdrew this claim from his post-conviction state habeas petition. 19 (Dkt. no. 15, at p. 8.) Petitioner later filed a sworn declaration formally abandoning this 20 claim. (Dkt. no. 19.) 21 Additionally, in Ground 3, Petitioner alleges that counsel on direct appeal was 22 ineffective for failing to raise claims addressing “the 5 th amendment due process 23 violation, the breach of the 1994/1997 plea bargains, ex post facto violation, the failure 24 of the sentencing court to allow defendant to speak before imposition of sentence, and 25 the question of whether the 2005 amendment to NRS 484.3792 could be constitutionally 26 imposed retroactively.” (Petition, at p. 12.) 27 Under Strickland, a Petitioner must show that his counsel’s performance was 28 both unreasonably deficient and that the defense was actually prejudiced as a result of 22 1 counsel’s errors. Strickland v. Washington, 446 U.S. at 684. The Strickland standard 2 also applies to claims of ineffective appellate counsel. Smith v. Robbins, 528 U.S. 259, 3 285 (2000). Appellate counsel has no constitutional duty to raise every non-frivolous 4 issue requested by the client. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). To state a 5 claim of ineffective assistance of appellate counsel, a Petitioner must demonstrate: (1) 6 that counsel’s performance was deficient in that it fell below an objective standard of 7 reasonableness, and (2) that the resulting prejudice was such that the omitted issue 8 would have a reasonable probability of success on appeal. Id. “Experienced advocates 9 since time beyond memory have emphasized the importance of winnowing out weaker 10 arguments on appeal and focusing on one central issue if possible, or at most on a few 11 key issues. Id. at 751-52. Petitioner must show that his counsel unreasonably failed to 12 discover and file nonfrivolous issues. Delgado v. Lewis, 223 F.3d 976, 980 (9th Cir. 13 2000). It is inappropriate to focus on what could have been done rather than focusing on 14 the reasonableness of what counsel did. Williams v. Woodford, 384 F.3d 567. 616 (9th 15 Cir. 2004) (citation omitted). 16 In the instant case, Petitioner’s appellate counsel testified at the evidentiary 17 hearing on Petitioner’s post-conviction habeas petition in state court. (Exhibit 55.) 18 Appellate counsel testified that he raised the allocution issue as the only issue on direct 19 appeal because one of his colleagues previously had success raising the same claim on 20 appeal in a different case. (Exhibit 55, at pp. 35-37.) Appellate counsel testified that the 21 issues he could raise on direct appeal were limited by Petitioner’s decision to enter a 22 guilty plea: “There was no evidence of a breach of the plea bargain by the District 23 Attorney . . . [a]nd the sentence that was imposed by the judge was within the range 24 provided by statute and our Supreme Court has consistently said that is they’re not 25 going to interfere with the exercise of that sentencing discretion.” (Id., at p. 38.) 26 The state district court found that appellate counsel was not ineffective, and the 27 Nevada Supreme Court affirmed that ruling. (Exhibits 56 & 73.) Petitioner’s claim that 28 his appellate counsel was ineffective for failing to raise the issue of allocution on appeal 23 1 is belied by the record. Counsel did raise the allocution issue on direct appeal, and it 2 was rejected by the Nevada Supreme Court. (Exhibits 19 & 21.) Appellate counsel 3 testified at the evidentiary hearing that his decision to raise only the allocution issue on 4 direct appeal was a strategic choice based on his professional judgment. (Exhibit 55, at 5 pp. 37-39.) As to the substantive claims that Petitioner asserts should have been raised 6 on direct appeal, the state district court and the Nevada Supreme Court rejected those 7 claims in reviewing them under an ineffective assistance of counsel theory. (Exhibits 56 8 & 73.) The Nevada Supreme Court rejected Petitioner’s assertion that any of those 9 claims would have had a likelihood of success on appeal. (Exhibit 73.) Again, the factual 10 findings of the state court are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has 11 failed to demonstrate that his appellate counsel’s performance was deficient or that he 12 was prejudiced under Strickland. Petitioner has failed to meet his burden of proving that 13 the state court’s ruling was contrary to, or involved an unreasonable application of, 14 clearly established federal law, as determined by the United States Supreme Court, or 15 that the ruling was based on an unreasonable determination of the facts in light of the 16 evidence presented in the state court proceeding. Federal habeas relief is denied on 17 Ground 3. 18 IV. CERTIFICATE OF APPEALABILITY 19 District courts are required to rule on the certificate of appealability in the order 20 disposing of a proceeding adversely to the Petitioner or movant, rather than waiting for 21 a notice of appeal and request for certificate of appealability to be filed. Rule 11(a). In 22 order to proceed with his appeal, Petitioner must receive a certificate of appealability. 28 23 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 24 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 25 2001). Generally, a Petitioner must make “a substantial showing of the denial of a 26 constitutional right” to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); 27 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The Petitioner must demonstrate that 28 reasonable jurists would find the district court's assessment of the constitutional claims 24 1 debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484.) In order to meet this threshold 2 inquiry, the Petitioner has the burden of demonstrating that the issues are debatable 3 among jurists of reason; that a court could resolve the issues differently; or that the 4 questions are adequate to deserve encouragement to proceed further. Id. In this case, 5 no reasonable jurist would find this Court’s denial of the petition debatable or wrong. 6 The Court therefore denies Petitioner a certificate of appealability. 7 V. 8 9 CONCLUSION It is therefore ordered that the petition for a writ of habeas corpus is denied in its entirety. 10 It is further ordered that Petitioner is denied a certificate of appealability. 11 It is further ordered that the Clerk of Court shall enter judgment accordingly. 12 DATED THIS 24th day of March 2014. 13 14 15 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 25