Tilcock v. Budge

Citation538 F.3d 1138
Decision Date15 August 2008
Docket NumberNo. 07-16184.,07-16184.
PartiesLarry Gene TILCOCK, Petitioner-Appellant, v. Michael BUDGE, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

David Anthony and Anne R. Traum, Assistant Federal Public Defenders, Las Vegas, NV, for the petitioner-appellant.

Conrad Hafen, Deputy Attorney General, and Thom Gover, Senior Deputy Attorney General, Las Vegas, NV, for the respondent-appellee.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CV-03-00037-ECR.

Before: J. CLIFFORD WALLACE and SUSAN P. GRABER, Circuit Judges, and DAVID A. EZRA,* District Judge.

GRABER, Circuit Judge:

A Nevada jury convicted Petitioner Larry Gene Tilcock of burglary, felony failure to stop on signal of police, and being a felon in possession of a firearm. The trial court sentenced Petitioner under Nevada's habitual criminal statute, Nev.Rev.Stat. § 207.010, to three concurrent terms of life imprisonment without the possibility of parole. The Nevada Supreme Court dismissed Petitioner's direct appeal and affirmed the trial court's denial of his habeas petitions. The federal district court denied Petitioner's petition for a writ of habeas corpus. We affirm in part, reverse in part, and remand for an evidentiary hearing.

FACTUAL AND PROCEDURAL HISTORY

Because Petitioner filed his habeas petition after April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, governs. 28 U.S.C. § 2254; Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). We presume that the state court's findings of fact are correct unless Petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004). Petitioner has not attempted to overcome the presumption with respect to the underlying events. We therefore rely on the state court's recitation of the facts. As found by the Nevada state trial court:

On January 21, 1998, detectives from the Las Vegas Metropolitan Police Department, Repeat Offender's Program, initiated surveillance on [Petitioner] at his residence. The detectives observed [Petitioner] get into his car, and drive away from his residence. [Petitioner] drove to an apartment complex, got out of his vehicle, and looked into the windows of several apartments. [Petitioner] left that complex, and followed a car into a gated condominium complex.

At the condominium complex, Sergeant Levins saw [Petitioner] back his car into a parking spot, and open the trunk. Sergeant Levins positioned himself so that he could see [Petitioner] through a crack in the block wall of the complex. A few moments later Sergeant Levins observed [Petitioner] standing on a step by a condominium window with a tire iron in his hand. Then Sergeant Levins saw [Petitioner] turn toward the condominium. [Petitioner] stepped out of the Sergeant's point of view, and Sergeant Levins immediately heard the sound of breaking glass. Next, Sergeant Levins heard glass being cleared from the window frame. As Sergeant Levins was about to give the signal for the team to move in to arrest [Petitioner], [Petitioner] walked back to his car, and Detective Johnson pulled into the complex.

When [Petitioner] saw Detective Johnson, he hopped in his car and began to drive away. Two detectives were approaching [Petitioner] with their guns drawn, and [Petitioner] accelerated his car, and drove directly at one of the men, who had to jump out of [Petitioner]'s way. Detective Sias pursued [Petitioner] to [the] gate of the complex, which had been blocked by several police cars. He parked three or four feet behind [Petitioner]'s car.

Detective Sias exited his vehicle and began yelling at [Petitioner] that he was a police officer and that [Petitioner] should exit his vehicle.[Petitioner] was not exiting the vehicle as Detective Sias approached [Petitioner]'s car. Detective Sias observed [Petitioner] move his hand toward a baseball cap in the passenger seat. The cap was covering an object that Detective Sias thought was a weapon.

[Petitioner] quickly moved his hand away from the cap, glanced in the car mirrors, and put the car in reverse and accelerated backwards. He slammed his car into Detective Johnson's vehicle. Detective Sias saw [Petitioner] make another movement to grab what he had earlier perceived to be a weapon. Because [Petitioner] was known to be armed and dangerous, Detective Sias, who feared for everyone's safety, shot [Petitioner] in the arm, and watched [Petitioner] go down.

A few seconds later, [Petitioner] sat up, accelerated, and sped out of the gate past the police cars. [Petitioner] was able to escape by driving at excessive speeds.

Officer Tafoya received an emergency call to aid in the pursuit of a suspect. He turned on his lights and siren, and began to drive to the area described in the call. While he was driving on Reno Avenue, Officer Tafoya saw [Petitioner] driving directly toward him on the wrong side of the road. Officer Tafoya had to swerve out of [Petitioner]'s way and onto the curb to avoid being struck by [Petitioner]. [Petitioner] kept driving, and Officer Tafoya made a U-turn to follow him.

[Petitioner] made several illegal driving maneuvers, endangering the lives of many more people. The chase finally ended when [Petitioner] crashed into a curb at a Circle K convenience store. While placing [Petitioner] under arrest, Officer Tafoya discovered a handgun in [Petitioner]'s pocket.

(Citations omitted.)

The State of Nevada charged Petitioner with burglary, felony failure to stop on signal of police, being a felon in possession of a firearm, and two counts of attempted murder. A jury convicted Petitioner of the burglary, felony failure to stop, and felon in possession of a firearm charges, but acquitted him of the attempted murder charges. The trial court sentenced Petitioner as a habitual criminal, under Nevada Revised Statutes section 207.010, to three consecutive terms of life imprisonment without the possibility of parole.1

Petitioner appealed to the Nevada Supreme Court, which affirmed the trial court's judgment of conviction. Petitioner then filed two habeas petitions and one motion for modification of sentence with the state trial court, which the court denied. The Nevada Supreme Court consolidated all three post-conviction applications and affirmed the trial court. Petitioner filed a habeas petition in federal district court, alleging 12 grounds for relief.

Petitioner also filed in state trial court a motion to correct an illegal sentence, which the court denied. The Nevada Supreme Court affirmed the trial court, and Petitioner amended his federal habeas petition to include this claim as a thirteenth ground for relief.

The district court denied Petitioner's habeas petition. Petitioner timely appeals.

STANDARDS OF REVIEW

We review de novo a district court's denial of a habeas petition filed pursuant to 28 U.S.C. § 2254. Gill v. Ayers, 342 F.3d 911, 917 (9th Cir.2003). Habeas relief is warranted only if the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or resulted in an unreasonable determination of facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 407-09, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

We review for abuse of discretion a district court's denial of a request for an evidentiary hearing under AEDPA standards. Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005). A district court abuses its discretion in denying a request for an evidentiary hearing if a petitioner "has alleged facts that, if proven, would entitle him to habeas relief, and . . . he did not receive a full and fair opportunity to develop those facts."2 Id. at 1167 (internal quotation marks omitted).

DISCUSSION

Petitioner raises a multitude of issues in his appeal, only two of which warrant discussion. On all other issues, we agree with the district court and affirm its rulings.

A. Nevada's habitual sentencing statute does not violate Apprendi.

Petitioner argues that his sentence as a habitual offender under Nevada's habitual criminal statute, Nev.Rev.Stat. § 207.010, violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), "because a habitual sentence under [section] 207.010, necessarily depends on judicial factfinding." According to Petitioner, "Nevada has a two-step process in which the court determines (1) whether the State has proved the predicate convictions, and (2) whether to dismiss or impose a habitual sentence based on the record as a whole." (Internal quotation marks omitted.) We disagree.

Under Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis added.) Under section 207.010, if a person has three qualifying felony convictions and is convicted of another felony, the person "is a habitual criminal and shall be punished" as one, Nev.Rev.Stat. § 207.010(1)(b) (emphases added), unless a prosecutor or a judge exercises discretion to be more lenient, id. § 207.010(2). Thus, under the terms of the statute, the fact of Petitioner's prior convictions alone exposed Petitioner to the statutory maximum of life imprisonment without the possibility of parole. The statute does not require or even authorize additional judicial factfinding to determine whether a defendant is a habitual criminal. Instead, "[t]he plain language of Nevada Revised Statutes § 207.010(2) grants the [trial] court discretion to dismiss a count of habitual criminality, not the discretion to impos...

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