Barren v. Skolnik
| Decision Date | 15 August 2012 |
| Docket Number | 2:09-cv-01202-RLH-VCF |
| Parties | DONALD ROBIN BARREN, Petitioner, v. HOWARD SKOLNIK, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. This matter comes before the Court on the merits of the petition.
On November 18, 2005, the Eighth Judicial District Court of Nevada entered a judgment, pursuant to a jury verdict, convicting petitioner of possession of a firearm by an ex-felon in violation of NRS 202.360. (Exhibit 62).1 The state district court found petitioner to be a habitual criminal pursuant to NRS 207.010, and sentenced him to life with the possibility of parole after ten years. (Id.). Petitioner pursued a direct appeal. (Exhibits 59, 61, 67, 71, 89, 91, 104). Petitioner, who hadrepresented himself during trial, requested permission of the Nevada Supreme Court to represent himself on appeal, and this request was denied. (Exhibits 61 and 67). Petitioner was appointed counsel on appeal, and filed an opening brief through counsel. (Exhibit 89). On September 25, 2007, the Nevada Supreme Court issued its order of affirmance. (Exhibit 104). Remittitur was issued on December 12, 2007. (Exhibit 110).
On April 3, 2008, petitioner filed a state post-conviction habeas corpus petition. (Exhibit 117). Petitioner later amended the petition. (Exhibit 126). On August 28, 2008, the state district court issued an order denying the habeas petition. (Exhibit 132). Petitioner appealed the denial of his state habeas petition. (Exhibit 129). On June 25, 2009, the Nevada Supreme Court issued an order affirming the state district court's denial of petitioner's habeas petition. (Exhibit 135). Petitioner filed a motion for rehearing, which was granted by the Nevada Supreme Court on August 7, 2009. (Order, ECF No. 22, at p. 4). On October 21, 2009, the Nevada Supreme Court denied petitioner's motion for rehearing. (Id., p. 5).
Petitioner signed his federal habeas petition on June 30, 2009. (ECF No. 3). The petition contains fourteen grounds for relief. (Id.). Respondents moved to dismiss certain grounds of the petition. (ECF No. 14). By order filed April 28, 2010, this Court granted the motion to dismiss, finding that Ground Nine was unexhausted, and the portion of Ground Four alleging that NRS 207.010 is unconstitutional in and of itself are unexhausted. (ECF No. 29). The Court gave petitioner options for handling his unexhausted claims, pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982); Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). In the same order, this Court granted petitioner's motion to amend the petition by adding Ground 15 (filed at ECF No. 26). (ECF No. 29). Also in the order filed April 28, 2010, the Court granted petitioner's motion to expand the record to include the August 7, 2009, and October 21, 2009 orders of the Nevada Supreme Court in case appeal number 52076, found as attachments to ECF No. 22). (ECF No. 29).
On May 6, 2010, petitioner formally abandoned his unexhausted claims, which included Ground Nine and the portion of Ground Four alleging that NRS 207.010 is unconstitutional in and of itself are unexhausted. (ECF No. 30).
Respondents filed an answer on August 5, 2010. (ECF No. 39). Petitioner filed a reply on August 13, 2010. (ECF No. 40). On February 7, 2011, the Court denied petitioner's motion for an evidentiary hearing and for expansion of the record. (ECF No. 49). By order filed July 28, 2011, the Court denied petitioner's second motion for leave to amend the petition, because petitioner sought leave to amend by reinstating a portion of Ground Nine, which he previously abandoned. (ECF No. 60). Petitioner filed a notice of appeal from this Court's order of July 28, 2011. (ECF No. 61). On October 27, 2011, the Ninth Circuit Court of Appeals dismissed the appeal for lack of jurisdiction. (ECF No. 66). The Court now considers the answer and the reply.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition:
The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C.§ 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) ().
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
In determining whether a state court decision is contrary to, or an unreasonable application of federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000), cert. denied, 534 U.S. 944 (2001). Moreover, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In the answer, respondents contend that Grounds Three and Fifteen of the petition are procedurally barred.
"Procedural default" refers to the situation where a petitioner in fact presented a claim to the state courts but the state courts disposed of the claim on procedural grounds, instead of on the merits.A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).
The Coleman Court stated the effect of a procedural default, as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The procedural default doctrine ensures that the state's interest in correcting its own mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003).
To demonstrate cause for a procedural default, the petitioner must be able to "show that some objective factor external to the defense impeded" his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). Ineffective assistance of counsel may satisfy the cause requirement to overcome a procedural default. Murray, 477 U.S. at 488. However, for ineffective assistance of counsel to satisfy the cause requirement, the independent claim of ineffective assistance of counsel, itself, must first be presented to the state courts. Murray, 477 U.S. at 488-89. In addition, the independent ineffective assistance of counsel claim cannot serve as cause if that claim is procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000).
With respect to the prejudice prong of cause and prejudice, the petitioner bears:
the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.
White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982). If the petitioner fails to show cause, the court need not consider whether the petitioner suffered actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); ...
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