Bickom v. Neven
| Decision Date | 13 March 2013 |
| Docket Number | 2:10-cv-00328-PMP-GWF |
| Parties | WILLIAM BICKOM, Petitioner, v. DWIGHT NEVEN, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner represented by counsel. Before the court is respondents' answer to the petition (ECF #15). Petitioner filed a reply (ECF #19).
On October 6, 1999, officers of the Las Vegas Metro Police Department ("LVMPD") served a search warrant at an apartment at 1831 Castleberry, Las Vegas, Nevada (exhibit 7 to petition, at 150-152).1 A search of the interior was conducted and petitioner's co-defendant Lisa Gill was taken into custody (id. at 155). Inside the apartment, methamphetamine and common components of amethamphetamine lab were found (id. at 166). Methamphetamine (48.4 grams) was found in a purse claimed by Lisa Gill (id. at 177). Methamphetamine (58.6 grams) was also found in a night stand in the bedroom (id. at 183). The amounts are above what is considered the normal amount kept for personal use (id. at 177).
In the same night stand where methamphetamine was found, paperwork bearing petitioner's name was found (id. at 184). The paperwork included a Department of Motor Vehicles receipt from 1985, a vehicle registration dated 1987, and a receipt for motorcycle repairs dated less than a month prior to the search, September 20, 1999 (id. at 235-237, 249). Men's and women's clothing was found in the apartment, and police conducting surveillance had seen petitioner walking in and out of the apartment (id. at 247; ex. 8 at 14). A crime scene analyst lifted a fingerprint from a 1000 milliliter flask that was later identified as petitioner's (ex. 8 at 78).
The Clark County Justice Court held a preliminary hearing on May 11, 2000 (ex. 2). One witness, a LVMPD narcotics detective, testified. The court granted petitioner's motion to dismiss, concluding that the State was without sufficient evidence to pursue the charges against him (id. at 37).
On June 13, 2000, the State presented evidence against petitioner and co-defendant Gill to a grand jury (ex. 3). Five witnesses testified for the State. The grand jury returned an indictment against both defendants (id.). Petitioner was charged by way of indictment with count I: trafficking in controlled substance; and count II: manufacture or compounding a controlled substance (ex. 4).
Petitioner filed a motion to sever and to continue the trial, or in the alternative a motion in limine regarding statements by the co-defendant (ex. 5). At a hearing on the motion, the trial court denied the motion to sever but agreed that certain statements would be excluded (ex. 7 at 4, 8). At that hearing, trial counsel also moved for a continuance, arguing that he did not know that the flask with petitioner's fingerprint was recovered from the apartment and not from Gill's storage unit (id. at 5-8). The State opposed, and the court denied the motion (id. at 8).
The State filed an amended indictment on June 23, 2004 (ex. 6). Petitioner was convicted by a jury and sentenced on August 30, 2004 as follows: 10-25 years for trafficking in a controlled substance; and 3-15 years to run concurrently for manufacture or compounding a controlled substance (ex.'s 9, 10). The judgment of conviction was filed on September 25, 2004 (ex. 10).
Petitioner appealed (ECF #9, ex. 36). The Nevada Supreme Court entered its order of affirmance on January 11, 2006 (ex. 11). Petitioner filed a proper person petition for a writ of habeas corpus in state district court on April 14, 2006 (ex. 12). Counsel was appointed to represent petitioner, and she filed a supplemental postconviction petition (ex. 13). The state district court held a hearing and then took the matter under consideration (ex. 16). The court denied the petition in a minute order on November 13, 2006 (ex. 17). On December 1, 2006, the State filed the Findings of Fact, Conclusions of Law and Order (ex. 18). The Nevada Supreme Court affirmed in part, denied in part, and remanded the matter to state district court on October 8, 2007 (ex. 23).
Upon remand, the state district court conducted an evidentiary hearing on February 5, 2008 (ex. 25). The district court denied the petition and the Findings of Fact, Conclusions of Law and Order, prepared by the State, were filed on April 21, 2008 (ex. 26). The Nevada Supreme Court affirmed on January 27, 2009 (ex. 31).
The Nevada Supreme Court denied petitioner's motion for rehearing on March 12, 2009 (ex. 33) and denied his petition for reconsideration en banc on April 22, 2009 (ex. 35).
On March 9, 2010, petitioner submitted this federal petition for writ of habeas corpus to the court (ECF #5). On February 15, 2011, the court granted in part and denied in part respondents' motion to dismiss, dismissing grounds 5, 9 and 11 (ECF #11). Respondents have answered and argue that the remaining grounds lack merit and that the petition should be denied (ECF #15). Petitioner replied (ECF #19).
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:
These standards of review "reflect the ... general requirement that federal courts not disturb state court determinations unless the state court has failed to follow the law as explicated by the Supreme Court." Davis v. Kramer, 167 F.3d 494, 500 (9th Cir. 1999). Therefore, this court's ability to grant a writ is limited to cases where "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 131 S.Ct. 770, 786 (2011).
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 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002).
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 factsof the prisoner's case." Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
In determining whether a state court decision is contrary to 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). Further, "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).
Ineffective assistance of counsel claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective assistance of counsel has the burden of demonstrating that (1) the attorney made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) that the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362, 390-91 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is "probability sufficient to undermine confidence in the outcome." Id. Additionally, any review of the attorney's performance must be "highly deferential" and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner's burden to overcome the presumption that counsel's actions might be considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient performance of counsel resulting in prejudice, "with performance being measured against an objectivestandard of reasonableness,. . . under prevailing professional norms." Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations omitted). If the state court has already rejected an ineffective assistance claim, a...
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