Reed v. Baca et al, No. 3:2013cv00426 - Document 22 (D. Nev. 2016)

Court Description: ORDER denying in its entirety ECF No. 5 Petition; denying a certificate of appealability; directing Clerk to enter judgment accordingly and close case. Signed by Judge Miranda M. Du on 11/21/2016. (Copies have been distributed pursuant to the NEF - KR)
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Reed v. Baca et al Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 HERMAN REED, Case No. 3:13-cv-00426-MMD-WGC Petitioner, 10 ORDER v. 11 ISIDRO BACA, et al., 12 Respondents. 13 14 This pro se first-amended petition for writ of habeas corpus pursuant to 28 U.S.C. 15 § 2254 by state prisoner Herman Reed is before the court for final disposition on the 16 merits. (ECF No. 5.) Respondents have answered the petition. (ECF No. 20.) Reed did 17 not file a reply. 18 I. PROCEDURAL HISTORY AND BACKGROUND 19 On October 7, 2009, Reed was convicted of three counts stemming from his arrest 20 during a traffic stop (exhibit 22 to respondents’ motion to dismiss).1 When the police officer 21 smelled marijuana, he asked Reed if he could search the vehicle, Reed consented; the 22 officer found a green leafy substance on the floor in the back of the car and a loaded 23 firearm in the trunk. Reed told the officer that he had purchased the gun from a guy behind 24 a gas station and that it was likely stolen. A jury convicted Reed of count 1: unlawful 25 possession of a firearm; count 2: possession of stolen property; and count 3: possession 26 of a firearm by ex-felon. (Exh. 22.) Counts 1 and 3 were charged under the same statute, 27 28 1Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 10. 1 and the court granted the State’s motion to dismiss count 1. (Exh. 30.) On January 22, 2 2010, petitioner was sentenced to forty-eight to one hundred twenty months on count 2 3 and a consecutive sentence of twenty-eight to seventy months on count 3. (Exh. 30.) The 4 judgment of conviction was entered on February 8, 2010. (Exh. 31.) 5 The Nevada Supreme Court affirmed Reed’s convictions on April 11, 2012. (Exh. 6 42.) Remittitur issued on May 7, 2012. (Exh. 43.) The Nevada Supreme Court affirmed 7 the state district court’s denial of Reed’s state postconviction petition for writ of habeas 8 corpus on June 12, 2013, denied a petition for rehearing on June 25, 2013, and remittitur 9 issued on August 21, 2013. (Exhs. 54, 56, 57.) 10 On June 24, 2015, this Court granted respondents’ motion to dismiss several grounds 11 in Reed’s federal petition for writ of habeas corpus. (ECF No. 16.) Respondents have now 12 answered the remaining grounds. 13 II. LEGAL STANDARDS 14 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty 15 Act (AEDPA), provides the legal standards for this court’s consideration of the petition in 16 this case: 17 18 19 20 21 22 23 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. 24 The AEDPA “modified a federal habeas court’s role in reviewing state prisoner 25 applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court 26 convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 27 693-694 (2002). This Court’s ability to grant a writ is limited to cases where “there is no 28 possibility fair-minded jurists could disagree that the state court’s decision conflicts with 2 1 [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The 2 Supreme Court has emphasized “that even a strong case for relief does not mean the 3 state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 4 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing 5 the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating 6 state-court rulings, which demands that state-court decisions be given the benefit of the 7 doubt”) (internal quotation marks and citations omitted). 8 A state court decision is contrary to clearly established Supreme Court precedent, 9 within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts 10 the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts 11 a set of facts that are materially indistinguishable from a decision of [the Supreme Court] 12 and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” 13 Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and 14 citing Bell, 535 U.S. at 694. 15 A state court decision is an unreasonable application of clearly established 16 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court 17 identifies the correct governing legal principle from [the Supreme Court’s] decisions but 18 unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. 19 at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires 20 the state court decision to be more than incorrect or erroneous; the state court’s 21 application of clearly established law must be objectively unreasonable. Id. (quoting 22 Williams, 529 U.S. at 409). 23 To the extent that the state court’s factual findings are challenged, the 24 “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas 25 review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause requires 26 that the federal courts “must be particularly deferential” to state court factual 27 determinations. Id. The governing standard is not satisfied by a showing merely that the 28 /// 3 1 state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires 2 substantially more deference: 3 . . . [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. 4 5 6 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393 F.3d at 972. 7 Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be 8 correct unless rebutted by clear and convincing evidence. The petitioner bears the burden 9 of proving by a preponderance of the evidence that he is entitled to habeas relief. Cullen, 10 563 U.S. at 181. 11 III. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 INSTANT PETITION A. Ground 3 Reed asserts that his Fourteenth Amendment due process rights were violated because the State failed to present sufficient evidence to support his conviction pursuant to NRS § 202.360(1)(c)2 of possession of a firearm by a person who is an unlawful user of, or addicted to, any controlled substance. (ECF No. 5, pp. 12-14.) However, Reed was not charged, convicted of, or sentenced for a violation of NRS § 202.360(1). Relief on this claim would not affect the fact of his convictions or affect his sentences in any way. Accordingly, ground 3 is meritless and moot. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Ground 3 is, therefore, denied. B. Ground 4 Reed alleges a federal double jeopardy violation on the basis that “convictions for ex-felon in possession of a firearm, and possession of stolen property (handgun), violate double jeopardy and redundancy principles.” (ECF No. 5 at 16.) To determine whether two offenses are the “same” for double jeopardy purposes, a court must consider “whether each offense contains an element not contained in the 27 28 2This statutory offense is currently codified as NRS § 202.360(1)(d). 4 1 other; if not, they are the ‘same offense’ and double jeopardy bars additional punishment 2 and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 (1993) (citing 3 Blockburger v. United States, 284 U.S. 299, 304 (1932)). “Conversely, ‘[d]ouble jeopardy 4 is not implicated so long as each violation requires proof of an element which the other 5 does not.’” Wilson v. Belleque, 554 F.3d 816, 829 (9th Cir. 2009) (quoting United States 6 v. Vargas-Castillo, 329 F.3d 715, 720 (9th Cir. 2003). “‘If each [offense] requires proof of 7 a fact that the other does not, the Blockburger test is satisfied, notwithstanding a 8 substantial overlap in the proof offered to establish the crimes.’” Id. (quoting Iannelli v. 9 United States, 420 U.S. 770, 785-86 n.17 (1975). 10 In affirming the denial of this claim, the Nevada Supreme Court set forth the 11 Blockburger test. (Exh. 42.) The Nevada Supreme Court also stated that NRS § 12 202.360(1)(a) (possession of a firearm by a felon) requires the State to prove that the 13 defendant (1) possessed a firearm and (2) has an unpardoned felony conviction; while 14 NRS § 205.275(2)(c) (possession of stolen property) requires the State to prove that the 15 defendant (1) buys, possesses, or withholds property and (2) knows or reasonably should 16 know under the circumstances that the property is stolen. The state supreme court then 17 pointed out that the State could have proven that Reed was a felon in possession of a 18 firearm without proving that Reed possessed the handgun knowing that it was stolen and 19 that the statutes codifying these crimes were directed to combat distinct and separate 20 social harms; thus “simultaneous punishment for both crimes comports with legislative 21 intent and the convictions are not redundant.” (Id.) 22 As set forth above, the offenses of possession of a firearm by a felon and 23 possession of stolen property in Nevada each contain an element not contained in the 24 other offense. Thus, petitioner has failed to demonstrate that the Nevada Supreme 25 Court’s decision was contrary to, or involved an unreasonable application of, federal law 26 established by the United States Supreme Court. 28 U.S.C. § 2254(d). Accordingly, 27 ground 4 is denied. 28 /// 5 1 C. 2 Reed contends that the district court erred in admitting at trial his involuntary 3 Ground 8 statements in violation of his Sixth Amendment rights. (ECF No. 5 at 44.) 4 In Miranda v. Arizona, the United States Supreme Court held that any person who 5 is subjected to a custodial interrogation must first be informed of his or her Fifth 6 Amendment right to remain silent and must knowingly, voluntarily, and intelligently waive 7 those rights in order for any statement to be rendered admissible at trial. 384 U.S. 436 8 (1966). The State must prove by a preponderance of the evidence that a defendant 9 waived his rights under Miranda. Colorado v. Connelly, 479 U.S. 157, 168 (1986). 10 The Nevada Supreme Court rejected this claim on direct appeal: 11 17 Reed contends that the district court erred in failing to suppress his statement admitting that the firearm was likely stolen because he did not knowingly or voluntarily waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966). In his motion to suppress, Reed only claimed that his waiver was invalid because he was extremely intoxicated. On appeal, Reed abandons this theory and expands his argument, asserting that he is not “of high intelligence” and that the general environment of the traffic stop was prohibitively coercive. As Reed failed to raise these grounds in the district court, his claim is precluded. See Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997). Additionally, these claims are belied by the record and we therefore discern no plain error. See NRS 178.602 (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). 18 The arresting officer testified at trial to the following: after he discovered the firearm in the 19 trunk, he placed Reed in handcuffs. (Exh. 38 at 280.) The officer read Reed his Miranda 20 rights. Reed indicated that he understood his rights and agreed to talk to the officer. Reed 21 told the officer that he bought the gun about a month earlier from a guy named Larry 22 behind the Arco station for $35. He said he did not know where the Arco station was, he 23 figured that Larry sold it for $35 because he had either found it or stolen it, and Reed said 24 that he had bought the gun in order to turn it in to the police. (Id. at 280-281.) 12 13 14 15 16 25 The record also reflects that the officer testified in the same manner at a hearing 26 on a defense motion to suppress the statements on the basis that Reed was under the 27 influence of marijuana and not able to give consent. (Exh. 19.) The state district court 28 denied the motion. Id. 6 1 Reed points to nothing in the state-court record that suggests that he was not able 2 to give consent because he was under the influence or that — as he now argues —he 3 failed to understand the questions because he lacked the intelligence or sufficient 4 education. Reed has, therefore, failed to demonstrate that the Nevada Supreme Court’s 5 decision was contrary to, or involved an unreasonable application of, federal law 6 established by the United States Supreme Court. 28 U.S.C. § 2254(d). Accordingly, 7 ground 8 is denied. 8 D. Ground 9 9 Reed argues that the cumulative effect of trial errors violated his Fourteenth 10 Amendment fair trial rights. (ECF No. 5 at 51.) The Nevada Supreme Court rejected all of 11 Reed’s claims of trial error on direct appeal, and therefore also concluded that Reed’s 12 cumulative error claim lacked merit. (Exh. 42.) Reed has not identified constitutional trial 13 errors, and therefore, he has failed to demonstrate that the Nevada Supreme Court’s 14 decision was contrary to, or involved an unreasonable application of, federal law 15 established by the United States Supreme Court. 28 U.S.C. § 2254(d). Ground 9, 16 therefore, is denied. 17 E. 18 Reed claims that trial counsel rendered ineffective assistance in several ways in 19 Ground 10 violation of his Sixth and Fourteenth Amendment rights. (ECF No. 5 at 54-62.) 20 Ineffective assistance of counsel claims are governed by the two-part test 21 announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme 22 Court held that a petitioner claiming ineffective assistance of counsel has the burden of 23 demonstrating that (1) the attorney made errors so serious that he or she was not 24 functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the 25 deficient performance prejudiced the defense. Williams, 529 U.S. at 390-91 (citing 26 Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that 27 counsel’s representation fell below an objective standard of reasonableness. Id. To 28 establish prejudice, the defendant must show that there is a reasonable probability that, 7 1 but for counsel’s unprofessional errors, the result of the proceeding would have been 2 different. Id. A reasonable probability is “probability sufficient to undermine confidence in 3 the outcome.” Id. Additionally, any review of the attorney’s performance must be “highly 4 deferential” and must adopt counsel’s perspective at the time of the challenged conduct, 5 in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the 6 petitioner’s burden to overcome the presumption that counsel’s actions might be 7 considered sound trial strategy. Id. 8 Ineffective assistance of counsel under Strickland requires a showing of deficient 9 performance of counsel resulting in prejudice, “with performance being measured against 10 an objective standard of reasonableness, . . . under prevailing professional norms.” 11 Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations omitted). 12 When the ineffective assistance of counsel claim is based on a challenge to a guilty plea, 13 the Strickland prejudice prong requires a petitioner to demonstrate “that there is a 14 reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and 15 would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). 16 If the state court has already rejected an ineffective assistance claim, a federal 17 habeas court may only grant relief if that decision was contrary to, or an unreasonable 18 application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). 19 There is a strong presumption that counsel’s conduct falls within the wide range of 20 reasonable professional assistance. Id. 21 The United States Supreme Court has described federal review of a state supreme 22 court’s decision on a claim of ineffective assistance of counsel as “doubly deferential.” 23 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411, 1413 (2009)). 24 The Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s 25 performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403 (internal citations 26 omitted). Moreover, federal habeas review of an ineffective assistance of counsel claim 27 is limited to the record before the state court that adjudicated the claim on the merits. 28 Cullen, 563 U.S. at 181-84. The United States Supreme Court has specifically reaffirmed 8 1 the extensive deference owed to a state court's decision regarding claims of ineffective 2 assistance of counsel: 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. 3 4 5 6 7 8 9 10 Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of 11 counsel must apply a ‘strong presumption’ that counsel’s representation was within the 12 ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466 13 U.S. at 689). “The question is whether an attorney’s representation amounted to 14 incompetence under prevailing professional norms, not whether it deviated from best 15 practices or most common custom.” Id. (internal quotations and citations and quotations 16 omitted). 17 As ground 10(A) Reed claims that trial counsel failed to adequately communicate 18 with him, and in ground 10(B) he argues that counsel failed to investigate Reed’s claim 19 that he did not consent to the search of his vehicle and that police planted marijuana and 20 a stolen firearm in his car. (ECF No. 5 at. 54-55.) 21 The Nevada Supreme Court affirmed the denial of these claims, stating that Reed 22 failed to demonstrate prejudice “as he did not explain how further communication or 23 investigation would have helped with his defense or changed the outcome of the trial. 24 (Exh. 54 at 2.) 25 This Court agrees that Reed has failed to state what evidence would have been 26 obtained by additional investigations or additional meetings with counsel and how the 27 outcome of his trial would have changed. 28 /// 9 1 Relatedly, Reed argues in ground 10(D) that trial counsel failed to present his 2 “defense of choice” at trial. (ECF No. 5 at 59.) The Nevada Supreme Court concluded 3 that this claim was belied by the record because at trial defense counsel advanced Reed’s 4 “defense of choice” when counsel challenged the police officers’ testimony about the 5 traffic stop and search and seizure and argued that the officers were not telling the truth 6 and that Reed did not consent to the search. (Exh. 54 at 3.) 7 In ground 10(C) Reed contends that trial counsel failed to adequately litigate the 8 motion to suppress the evidence. (ECF No. 5 at 56.) The Nevada Supreme Court 9 observed that two police officers testified that Reed consented to a search of his car 10 during a routine traffic stop and that they found marijuana and a firearm in the vehicle. 11 (Exh. 54 at 2.) The state supreme court therefore reasoned that “in light of this testimony, 12 appellant failed to demonstrate a reasonable probability that the evidence would have 13 been suppressed had counsel argued that the search was non-consensual and that the 14 evidence was planted by police.” (Id.) 15 As ground 10(E) Reed asserts that trial counsel failed to object to the admission 16 of evidence seized from Reed’s vehicle. (ECF No. 5 at 60.) The Nevada Supreme Court 17 pointed out that the district court made a pretrial ruling that the evidence was admissible 18 at trial and that “[c]ounsel cannot be deemed ineffective for failing to make a futile 19 objection or motion.” (Exh. 54 at 3; pretrial hearing, Exh. 14 at 6-8.) 20 Related to all of the above ineffective assistance claims, the trial record reflects 21 that defense counsel cross-examined the two police officers involved in the traffic stop 22 regarding: the failure to field test the marijuana found; failure to fingerprint or DNA test 23 the gun found in Reed’s vehicle; failure to photograph the fact that Reed’s license plate 24 light was not working; failure to record Reed’s statements; failure to document the fact 25 that Reed’s demeanor changed during the course of the investigation; and the failure to 26 get Reed’s consent to the search in writing. (Exh. 20 at 53-54; Exh. 21 at 12.) Defense 27 counsel argued during closing that the officers were not telling the truth and that one 28 officer had planted the evidence. (Exh. 21 at 17.) 10 1 In ground 10(F) Reed argues that trial counsel failed to object to the State’s 2 introduction of hearsay in the form of Reed’s admissions to law enforcement. (ECF No. 5 3 at 61.) The Nevada Supreme Court reasoned that, as Reed’s statement was not hearsay, 4 Reed failed to demonstrate that his counsel’s performance was deficient or that he was 5 prejudiced. (Exh. 54 at 3; see NRS 51.035(3)(a).) 6 Reed claims in ground 10(G) that counsel had a conflict of interest on the basis 7 that counsel failed to investigate and litigate claims and issues, failed to lodge objections 8 at trial, and failed to prepare Reed to testify. (ECF No. 5 at 61-62.) The Nevada Supreme 9 Court pointed out that as this claim was based entirely on Reed’s other claims of 10 ineffective assistance, as set forth above, that Reed therefore failed to show an actual 11 conflict of interest. (Exh. 54 at 3.) 12 Reed has failed to demonstrate that the Nevada Supreme Court’s decision on any 13 of the ineffective assistance of counsel claims in federal ground 10 was contrary to, or 14 involved an unreasonable application of, Strickland. 28 U.S.C. § 2254(d). Accordingly, 15 ground 10 is denied. The petition is therefore denied it its entirety. 16 17 IV. CERTIFICATE OF APPEALABILITY 18 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 19 Governing Section 2254 Cases requires this Court to issue or deny a certificate of 20 appealability (COA). Accordingly, the Court has sua sponte evaluated the claims within 21 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 22 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 23 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner 24 "has made a substantial showing of the denial of a constitutional right." With respect to 25 claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would 26 find the district court's assessment of the constitutional claims debatable or wrong." Slack 27 v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 28 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate 11 1 (1) whether the petition states a valid claim of the denial of a constitutional right and (2) 2 whether the court's procedural ruling was correct. Id. 3 Having reviewed its determinations and rulings in adjudicating Reed’s petition, the 4 Court finds that none of those rulings meets the Slack standard. The Court therefore 5 declines to issue a certificate of appealability for its resolution of any of Reed’s claims. 6 V. CONCLUSION 7 It is therefore ordered that the petition (ECF No. 5) is denied in its entirety. 8 It is further ordered that a certificate of appealability is denied. 9 It is further ordered that the Clerk enter judgment accordingly and close this case. 10 DATED THIS 21st day of November 2016. 11 12 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12