Carmona v. NDOC Dir., Case No. 3:11-cv-00070-MMD-WGC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
Writing for the CourtMIRANDA M. DU
PartiesJONATHAN JOSHUA CARMONA, Petitioner, v. NDOC DIRECTOR, et al., Respondents.
Docket NumberCase No. 3:11-cv-00070-MMD-WGC
Decision Date07 February 2014

NDOC DIRECTOR, et al., Respondents.

Case No. 3:11-cv-00070-MMD-WGC


DATED: February 7, 2014


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 December 12, 2007, in the Second Judicial District for the State of Nevada, petitioner was charged with five counts of robbery with the use of a firearm and one count of burglary. (Exhibit 4.)1 Petitioner pled guilty to the five counts of robbery with the use of firearm. (Exhibit 8.) Petitioner was sentenced on each five counts to a minimum term of 35 months to a maximum term of 120 months imprisonment, with a like consecutive sentence of a minimum term of 35 months to a maximum term of 120 months imprisonment for the use of a firearm, as to each of the five counts. (Exhibit 16.) All counts are to run consecutively. (Id.)

Petitioner appealed his conviction to Nevada Supreme Court. (Exhibit 17.) In his direct appeal, petition raised a claim that the sentence imposed by the district court was excessive and an abuse of discretion. (Exhibit 21.) On February 26, 2009, the Nevada

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Supreme Court affirmed the conviction. (Exhibit 24.) Remittitur issued on March 24, 2009). (Exhibit 25.)

On February 4, 2010, petitioner filed a post-conviction habeas petition in the state district court, alleging several instances of ineffective assistance of trial counsel. (Exhibit 27.) The state district court denied the petition by written order filed June 24, 2010. (Exhibit 34.) Petitioner appealed the denial of his state habeas petition. (Exhibit 42.) In his opening brief, petitioner alleged several instances of ineffectiveness of counsel. (Exhibit 51, at pp. 2-5.) Petitioner also attached the state habeas petition to his appeal. (Exhibit 51, at Exhibit B.) The Nevada Supreme Court affirmed the denial of petitioner's state habeas petition on January 13, 2011. (Exhibit 54.) Remittitur issued on February 7, 2011. (Exhibit 55.)

Petitioner dispatched his federal habeas petition to this Court on January 31, 2011. (Dkt. no. 4, at p. 1.) The federal petition raises three grounds for relief: (1) Petitioner's sentence is excessive in violation of the Eighth Amendment; (2) petitioner's counsel was ineffective in violation of the Sixth Amendment, as set forth in Exhibit A (petitioner's state habeas petition); and (3) petitioner's conviction or sentence is unconstitutional due to a violation of his First Amendment right to a direct appeal. (Dkt. no. 4.) Respondents filed the answer to the petition on April 25, 2011. (Dkt. no. 6.) Petitioner filed his reply/traverse to the answer on June 22, 2011. (Dkt. no. 16).


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:

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

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(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.

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) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). The formidable standard set forth in section 2254(d) reflects the view that habeas corpus is '"a guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).

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.

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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).

In a federal habeas proceeding, "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). If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the burden set forth in § 2254(d) and (e) on the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011).


A. Ground 1

In Ground 1, petitioner alleges that his "100 year sentence" is excessive in violation of the Eighth Amendment. (Dkt. no. 4, at p. 3.) Petitioner does not assert that his punishment is inherently barbaric or cruel, nor does he challenge the constitutionality of the statute under which he was convicted. (Id.)

The United States Supreme Court has held that the Eighth Amendment contains a "narrow proportionality principle." Graham v. Florida, 560 U.S. 48, 59-60 (2010) (internal quotation marks omitted). This principle "does not require strict proportionality between the crime and the sentence but rather forbids only extreme sentences that are grossly disproportionate to the crime." Id. (internal quotations omitted).

In addressing petitioner's Eighth Amendment claim, the Nevada Supreme Court held:

Carmona contends that the sentence imposed by the district court is excessive and an abuse of discretion given the facts of the case and the nature of the defendant. Carmona cites to the dissent in Tanksley v. State, 113 Nev. 844, 944 P.2d 240 (1997) (Rose, J., dissenting), and the concurrence in Santana v. State, 122 Nev. 1458, 148 P.3d 741 (2006)
(Rose, J., concurring), in support of his argument. Carmona argues that the case should be remanded to the district court "with instructions to resentence [him] to concurrent time." We disagree.
This court has consistently afforded the district court wide discretion in its sentencing decision. See Houk v. State, 103 Nev. 659, 664, 747 P.2d

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1376, 1379 (1987). This court will refrain from interfering with the sentence imposed "[s]o long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence." Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). A sentence within statutory limits is not cruel and unusual punishment where the statute itself is constitutional and the sentence is not so unreasonably disproportionate to the crimes as to shock the conscience. Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996).
We conclude that the district court did not abuse its discretion at sentencing and the sentence imposed is not excessive or disproportionate to the crimes. In the instant case, Carmona committed five separate armed robberies over a period of ten days, including a carjacking at gunpoint from a mother and her small children. At sentencing, the district court noted that Carmona previously served a prison term for a crime of violence with the use of a deadly weapon. Carmona does not claim that the district court relied on impalpable or high suspect evidence or that the relevant statutes are unconstitutional. And the sentences imposed are within the statutory parameters. See NRS 200.380(2) and 193.165.

(Exhibit 24, at pp. 1-2).

The Nevada Supreme Court correctly denied petitioner's Eighth Amendment claim. The Court stated...

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