Jasso v. Le Grand et al, No. 3:2011cv00827 - Document 25 (D. Nev. 2015)

Court Description: ORDER denying 6 Petition for Writ of Habeas Corpus; directing Clerk to enter judgment accordingly; denying a certificate of appealability. Signed by Judge Miranda M. Du on 3/23/2015. (Copies have been distributed pursuant to the NEF - KR)
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Jasso v. Le Grand et al Doc. 25 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 REYNOLD T. JASSO, 10 Petitioner, ORDER v. 11 12 Case No. 3:11-cv-00827-MMD-VPC LeGRAND, et al., Respondents. 13 14 Before the Court for a decision on the merits is an application for a writ of habeas 15 16 corpus filed by Reynaldo T. Jasso, a Nevada prisoner. (Dkt. no. 6.) 17 I. FACTUAL AND PROCEDURAL HISTORY 18 In December 2007, the State of Nevada filed a criminal complaint in Henderson 19 Justice Court, Clark County, Nevada, charging Jasso the following felonies: 25 counts 20 of Lewdness with a Child Under the Age of 14, 13 counts of Sexual Assault with a Minor 21 Under Sixteen Years of Age, one count of Battery with Intent to Commit Sexual Assault, 22 two counts of Attempted Sexual Assault with a Minor Under Sixteen Years of Age, and 23 one count of Use of Minor in Producing Pornography. In June of 2008, Jasso entered 24 into a guilty plea agreement with the State, under the terms of which he would enter a 25 guilty plea to one count of Lewdness with a Child Under the Age of 14 and both parties 26 would recommend a sentence of ten years to life. 27 In September of 2008, Jasso filed a motion to withdraw the guilty plea, claiming 28 that he did not understand the plea agreement. The motion was denied. Jasso received Dockets.Justia.com 1 a sentence of ten years to life, as well as lifetime supervision and mandatory registration 2 as a sex offender within 48 hours of any release from custody. Jasso appealed. 3 On January 8, 2010, the Nevada Supreme Court affirmed the judgment of 4 conviction. Jasso filed a petition for post-conviction relief in the state district court on 5 October 25, 2010. On March 22, 2011, the state district court entered an order denying 6 relief. The Nevada Supreme Court affirmed that decision on September 15, 2011. 7 On November 16, 2011, this Court received Jasso’s petition for writ of habeas 8 corpus. After receiving Jasso’s filing fee, this Court ordered the petition filed on January 9 26, 2012. The respondents filed an answer to the petition on April 18, 2012. Jasso filed 10 his reply on July 12, 2012. 11 II. 12 13 STANDARDS OF REVIEW This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA: 14 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA: 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 16 17 18 19 20 21 22 (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. 28 U.S.C. § 2254(d). 23 A decision of a state court is “contrary to” clearly established federal law if the 24 state court arrives at a conclusion opposite that reached by the Supreme Court on a 25 question of law or if the state court decides a case differently than the Supreme Court 26 has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405- 27 06 (2000). An “unreasonable application” occurs when “a state-court decision 28 unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.” 2 1 Id. at 409. “[A] federal habeas court may not “issue the writ simply because that court 2 concludes in its independent judgment that the relevant state-court decision applied 3 clearly established federal law erroneously or incorrectly.” Id. at 411. 4 The Supreme Court has explained that “[a] federal court’s collateral review of a 5 state-court decision must be consistent with the respect due state courts in our federal 6 system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a 7 ‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that state- 8 court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 9 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 10 537 U.S. 19, 24 (2002) (per curiam)). “A state court’s determination that a claim lacks 11 merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on 12 the correctness of the state court's decision.” Harrington v. Richter, 131 S.Ct. 770, 786 13 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court 14 has emphasized “that even a strong case for relief does not mean the state court’s 15 contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 16 (2003)); see also Cullen v. Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the 17 AEDPA standard as “a difficult to meet and highly deferential standard for evaluating 18 state-court rulings, which demands that state-court decisions be given the benefit of the 19 doubt”) (internal quotation marks and citations omitted). 20 “[R]eview under § 2254(d)(1) is limited to the record that was before the state 21 court that adjudicated the claim on the merits.” Pinholster, 131 S.Ct. at 1398. In 22 Pinholster, the Court reasoned that the “backward-looking language” present in § 23 2254(d)(1) “requires an examination of the state-court decision at the time it was made,” 24 and, therefore, the record under review must be “limited to the record in existence at 25 that same time, i.e., the record before the state court.” Id. 26 For any habeas claim that has not been adjudicated on the merits by the state 27 court, the federal court reviews the claim de novo without the deference usually 28 accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 3 1 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). See also 2 James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting that federal court review is 3 de novo where a state court does not reach the merits, but instead denies relief based 4 on a procedural bar later held inadequate to foreclose federal habeas review). In such 5 instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 131 6 S.Ct at 1401 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not 7 bar federal habeas relief.”); Pirtle, 313 F.3d at 1167-68 (stating that state court findings 8 of fact are presumed correct under § 2254(e)(1) even if legal review is de novo). 9 Lastly, the Court in Lockyer rejected a Ninth Circuit mandate for habeas courts to 10 review habeas claims by conducting a de novo review prior to applying the “contrary to 11 or unreasonable application of” limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. 12 at 71. In doing so, however, the Court did not preclude such an approach. “AEDPA 13 does not require a federal habeas court to adopt any one methodology in deciding the 14 only question that matters under § 2254(d)(1) whether a state court decision is 15 contrary to, or involved an unreasonable application of, clearly established Federal law.” 16 Id. 17 III. ANALYSIS OF CLAIMS 18 A. Ground One 19 In Ground One, Jasso claims that his guilty plea was involuntary, in violation of 20 his constitutional rights, because he was not informed that probation was available as a 21 sentencing option for the offense to which he entered the plea. He further alleges that 22 he was not informed of the need for, nor did he receive, a psychosexual evaluation or a 23 presentence investigation report prior to sentencing. From 2000 until 2003 probation 24 was a potential penalty for the crime for which Jasso was convicted, provided that a 25 licensed psychologist certified that the offender was not a menace to the health, safety 26 or morals of others if released. NRS § 201.230 (1999); NRS § 1776A.110 (2001). 27 However, beginning in 2003, the Nevada legislature revised the possible penalties by 28 eliminating probation as a sentencing option and adding a term of two to twenty years. 4 1 NRS § 201.230 (2003); NRS § 1776A.110 (2003) (omitting an offense under NRS § 2 201.230 from the list of sex crimes for which the court may grant probation under the 3 section). 4 Jasso’s Guilty Plea Agreement contained the following provision: 5 I understand that as a consequence of my plea of guilty the Court must sentence me to a term of LIFE with the possibility of parole with parole eligibility beginning at ten (10) years or definite term of twenty (20) years with parole eligibility beginning at two (2) years. 6 7 8 (Dkt. no. 20-1 at 97-98.)1 In addition, the agreement specifically provided that Jasso 9 was not eligible for probation. (Id. at 98.) Thus, the agreement used the post-2003 10 version of the law with respect to the potential sentences the court could impose. Jasso 11 argues that, because the time period the crime was alleged to have been committed 12 ranged from January 1, 2000, to September 30, 2004, he should have been informed as 13 to the possibility for probation if he met the certification requirements applicable prior to 14 2003. 15 A plea is voluntary if it “represents a voluntary and intelligent choice among the 16 alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 17 25, 31 (1970); Hill v. Lockhart, 474 U.S. 52, 56 (1985). “[A] plea of guilty entered by one 18 fully aware of the direct consequences . . . must stand unless induced by threats (or 19 promises to discontinue improper harassment), misrepresentation (including unfulfilled 20 or unfulfillable promises), or perhaps by promises that are by their nature improper as 21 having no proper relationship to the prosecutor's business (e.g. bribes).” Brady v. United 22 States, 397 U.S. 742, 755 (1970). In Brady, the Court stated: 23 24 25 26 We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than to face a wider range of possibilities extending from conviction to acquittal, and a higher penalty authorized by law for the crime charged. 397 U.S. at 751. 27 28 1 References to page numbers in the record are based on CM/ECF pagination. 5 1 In addressing this claim in Jasso’s state post-conviction proceeding, the Nevada 2 Supreme Court held that a “guilty plea is presumptively valid,” “the petitioner carries the 3 burden of establishing that the plea was not entered knowingly and intelligently,” and 4 the court “looks to the totality of the circumstances” to determine whether the plea is 5 valid. (Dkt. no. 20-3 at 74 (citing Nevada case law).) In rejecting Jasso’s claim, the court 6 reasoned: 7 Appellant was originally charged with forty-two counts. In exchange for a stipulated sentence of life in prison with the possibility of parole after ten years, the State agreed to only pursue one count of lewdness with a minor under the age of fourteen and dismiss the remaining forty-one counts. Because appellant stipulated to a specific sentence, appellant failed to demonstrate that knowing probation was a potential penalty would have influenced his decision to plead guilty. Therefore, the district court did not err in denying this claim. 8 9 10 11 12 (Id.) With respect to Jasso not being informed of a psychosexual evaluation or a 13 presentence investigation report, the court concluded that these issues could not have 14 affected the validity of the plea because they arose after the plea was entered. (Id. at 15 73.) 16 Although the Nevada Supreme Court did not cite specifically to federal law, the 17 standards the court imposed were not “contrary to” clearly established Supreme Court 18 law for the purposes § 2254(d)(1). See Early v. Packer, 537 U.S. 3, 8 (2002) (per 19 curiam) (holding that state court is not required to cite Supreme Court cases, or even be 20 aware of them, to avoid its decision being “contrary to” Supreme Court precedent). 21 Moreover, the court’s decision was not unreasonable. As Brady makes clear, an 22 otherwise voluntary and intelligent guilty plea is not vulnerable to collateral attack simply 23 because a defendant later discovers “his calculus misapprehended . . . the likely 24 penalties attached to alternative courses of action.” Brady, 397 U.S. at 757; see Little v. 25 Crawford, 449 F.3d 1075, 1081 (9th Cir. 2006) (holding that petitioner's guilty plea was 26 knowing and voluntary despite court's failure to advise him on the record that he was 27 ineligible for probation). Because Jasso cannot surmount the barriers to relief imposed 28 by § 2254(d), Ground One must be denied. 6 1 B. 2 In Ground Two, Jasso alleges that he was deprived of his constitutional right to 3 effective assistance of counsel because his counsel did not have any type of 4 psychosexual evaluation conducted on him before advising him to enter his guilty plea, 5 despite the fact that he had no prior sex offenses in his criminal history. According to 6 Jasso, counsel erroneously presumed that he would not be eligible for probation 7 because either the post-2003 version of the statute governed his sentence or he would 8 ultimately prove to be a “high risk” to re-offend. Jasso also argues that, under the pre- 9 July 1, 2003, version of NRS § 200.366(b), a conviction for sexual assault on a minor 10 Ground Two with no substantial bodily harm could result in a lesser sentence of 5 to 20 years. 11 To demonstrate ineffective assistance of counsel in violation of the Sixth and 12 Fourteenth Amendments, a convicted defendant must show that (1) counsel's 13 representation fell below an objective standard of reasonableness under prevailing 14 professional norms in light of all the circumstances of the particular case; and (2) unless 15 prejudice is presumed, it is reasonably probable that, but for counsel's errors, the result 16 of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 17 687-94 (1984). A habeas petitioner may attack the voluntary and intelligent character of 18 a guilty plea by showing that he received ineffective assistance from counsel in 19 connection with the entry of the plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). 20 To demonstrate ineffective assistance of counsel in the context of a challenge to a guilty 21 plea, a petitioner must show both that counsel's advice fell below an objective standard 22 of reasonableness as well as a “reasonable probability” that, but for counsel's errors, the 23 petitioner would not have pled guilty and would have insisted on going to trial. Hill v. 24 Lockhart, 474 U.S. 52, 58–59 (1985) (holding that the two-part Strickland test applies to 25 challenges to guilty pleas based on the ineffective assistance of counsel). 26 In Jasso’s state post-conviction proceeding, the Nevada Supreme Court 27 correctly identified the standards set forth in Strickland and Hill v. Lockhart as ones to 28 apply to this claim. (Dkt. no. 20-3 at 75.) The court concluded that Jasso had failed to 7 1 demonstrate that he was prejudiced because “he received a tremendous benefit by 2 entry of his guilty plea as he avoided forty-one additional counts in this case.” . . . and 3 he “failed to demonstrate a reasonable probability that he would not have pleaded guilty 4 had trial counsel obtained a psychosexual evaluation . . .” Id. Here again, the state 5 court’s decision was not unreasonable. The claim relies on two untenable assumptions: 6 (1) the State would have consented to a guilty plea agreement under which probation 7 was a potential outcome and/or (2) there is a reasonable probability that Jasso would 8 have risked going to trial on 42 felony counts had his counsel obtained a psychosexual 9 evaluation. See Hill, 474 U.S. at 56 (finding no actual prejudice and declining to reach 10 the question of whether counsel's erroneous advice regarding eligibility for parole under 11 proffered plea bargain would satisfy the first prong of the Strickland test because the 12 defendant failed to demonstrate that he would have pled differently but for the 13 erroneous advice). The state court’s decision is entitled to deference under § 2254(d). 14 Thus, Ground Two must be denied. 15 C. Ground Three 16 In Ground Three, Jasso alleges that he was deprived of his constitutional right to 17 effective assistance of trial and appellate counsel because neither counsel raised an 18 issue as to Jasso being sentenced without a psychosexual evaluation or a presentence 19 investigation report. Jasso contends he had a statutory right to both under NRS §§ 20 176.135(2) and 176.139. He further argues that the absence of a psychosexual 21 evaluation deprived the court of jurisdiction to impose a sentence. 22 In Jasso’s state post-conviction proceeding, the Nevada Supreme Court found 23 that his claim regarding the lack of a presentence investigation report was “belied by 24 record” because such a report was completed. (Dkt. no. 20-3 at 76.) As to the 25 psychosexual evaluation, the court concluded that counsel did not perform deficiently 26 because Jasso “agreed to a stipulated sentence of life in prison with the possibility of 27 parole after ten years,” which rendered such evaluation unnecessary. (Id.) Accordingly, 28 /// 8 1 any objection to the lack of an evaluation “would have been futile,” and “the issue did 2 not have a reasonable probability of success on appeal.” (Id.) 3 The record before this Court does not contain evidence, beyond the Nevada 4 Supreme Court’s finding, that a presentence investigation report was ever completed. 5 Thus, this Court cannot determine whether that finding was reasonable for the purposes 6 of § 2254(d)(2). Even if it was not, however, the ineffective assistance of trial counsel 7 claim in Ground Three fails because, like Ground Two, it relies on faulty premises 8 i.e., that, had Jasso’s counsel insisted upon a presentence investigation and 9 psychosexual evaluation prior to sentencing, the State would have still been willing to 10 extend a similarly favorable plea offer or, alternatively, there is a reasonable probability 11 that Jasso would have risked going to trial on 42 felony counts. 12 Likewise, appellate counsel did not render ineffective assistance of counsel by 13 not raising the issue on direct appeal. To begin with, the Nevada Supreme Court does 14 not permit a defendant to challenge the validity of a guilty plea on direct appeal from the 15 judgment of conviction. See Bryant v. State, 721 P.2d 364, 367-68 (Nev. 1986).2 16 “Instead, a defendant must raise a challenge to the validity of his or her guilty plea in the 17 district court in the first instance, either by bringing a motion to withdraw the guilty plea, 18 or by initiating a post-conviction proceeding.” Id. at 368. While appellate counsel could 19 have conceivably challenged the sentence due to the lack of the presentence 20 investigation or psychosexual evaluation, Jasso has not demonstrated a reasonable 21 probability that the outcome of the proceeding would have been more favorable. Even in 22 the unlikely event that the Nevada Supreme Court set aside his sentence, there is 23 nothing in the record to suggest that Jasso would have received a lesser sentence on 24 remand. 25 Ground Three is denied. 26 27 28 2 The Nevada Supreme Court will, however, review on direct appeal the state district court’s denial of a motion to withdraw plea. Hart v. State, 1 P.3d 969, 971 n.2 (2000) overruled on other grounds by Harris v. State, 329 P.3d 619 (2014). 9 1 D. Ground Four 2 In Ground Four, Jasso alleges that he was deprived of his constitutional right to 3 effective assistance of counsel because his counsel advised him to plead guilty without 4 testing his case at a preliminary hearing or conducting an adequate investigation. He 5 contends that, based on a review of counsel’s file, it appears as if counsel’s advice was 6 based “purely upon reading the police reports in this case.” (Dkt. 20-3 at 17.) In addition, 7 Jasso faults counsel for failing to do any legal research or file any motions. 8 In Jasso’s state post-conviction proceeding, the Nevada Supreme Court 9 concluded that Jasso had not met either prong of the Strickland test with respect to this 10 claim. (Dkt. no. 20-3 at 76.) The court noted that Jasso had not identified what motions 11 counsel failed to file or demonstrated that he would have not pled guilty if counsel had 12 conducted additional investigation. (Id.) 13 Courts have generally rejected claims of ineffective assistance premised on a 14 failure to investigate where the record demonstrates that the defendant would have pled 15 guilty despite the additional evidence and where the additional evidence was unlikely to 16 change the outcome at trial. See, e.g. Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 17 1996) (denying claim of ineffective assistance of counsel on the ground that the record 18 supported the state court's finding that even if the petitioner had been offered a defense 19 psychiatrist, he would have pled guilty anyway); Mitchell v. Scully, 746 F.2d 951, 955 20 (2nd Cir. 1984) (per curiam) (finding no prejudice and guilty plea voluntary where 21 counsel allegedly failed to inform defendant of affirmative defense that had little chance 22 of success and entailed serious risks). 23 As respondents point out, there is evidence in the record that defense counsel 24 retained an investigator and had designated witnesses and experts in preparation for 25 trial. (Dkt. no. 20-1 at 71-78 (motion and order appointing investigator and approving 26 expenses); id. at 91-95 (defendant’s witness and expert witness list).) More fatal to 27 Jasso’s claim is that he offers only vague allegations as to areas that counsel failed to 28 explore (e.g., the charges against him arose only after victim’s mother decided to 10 1 divorce him and the victim was sexually active with others (dkt. no. 20-3 at 18)) and fails 2 to identify any specific evidence that a more vigorous investigation would have 3 unearthed. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (“Speculation 4 about what an expert could have said is not enough to establish prejudice.”); Ceja v. 5 Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996) (defendant “fail[ed] to explain what 6 compelling evidence additional interviews would have unearthed or to explain how an 7 investigation of aggravation evidence would have negated the evidence of the multiple 8 gunshot wounds.); Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995) (“Absent 9 an account of what beneficial evidence investigation into any of these issues would 10 have turned up, [defendant] cannot meet the prejudice prong of the Strickland test.”). 11 In addition, Jasso also fails to explain how his defense would have benefitted 12 from a preliminary hearing. Because the Nevada Supreme Court’s denial of Ground 13 Four was neither contrary to, nor did it involve an unreasonable application of, clearly 14 established federal law, the claim must be denied. For the reasons set forth above, Jasso’s petition for habeas relief is denied. 15 16 IV. CONCLUSION 17 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 18 Governing Section 2254 Cases requires this Court to issue or deny a certificate of 19 appealability (COA). Accordingly, the Court has sua sponte evaluated the claims within 20 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 21 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 22 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner 23 “has made a substantial showing of the denial of a constitutional right.” With respect to 24 claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists 25 would find the district court's assessment of the constitutional claims debatable or 26 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 27 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable 28 /// 11 1 jurists could debate (1) whether the petition states a valid claim of the denial of a 2 constitutional right and (2) whether the court's procedural ruling was correct. Id. 3 Having reviewed its determinations and rulings in adjudicating Jasso’s petition, 4 the Court declines to issue a certificate of appealability for its resolution of any 5 procedural issues or any of Jasso’s habeas claims. 6 7 It is therefore ordered that petitioner's petition for writ of habeas corpus (dkt. no. 6) is denied. The Clerk shall enter judgment accordingly. 8 It is further ordered that a certificate of appealability is denied. 9 DATED THIS 23rd day of March 2015. 10 11 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12