Fluker v. Russell

• Court: U.S. District Court — District of Nevada
• Writing for the Court: MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
• Decision Date: 26 October 2021
• Docket Number: 3:17-cv-00299-MMD-CLB
• Citation: Fluker v. Russell, 3:17-cv-00299-MMD-CLB (D. Nev. Oct 26, 2021)
• Parties: ROBERT FLUKER, Petitioner, v. PERRY RUSSELL, [1] et al., Respondents.

ROBERT FLUKER, Petitioner, v. PERRY RUSSELL, ^[1] et al., Respondents.

No. 3:17-cv-00299-MMD-CLB

United States District Court, D. Nevada

October 26, 2021

ORDER

MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

I. SUMMARY

Petitioner Robert Fluker filed a counseled petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 18 (“Petition”).) This matter is now before the Court for adjudication on the merits of the petition and motions to, inter alia, supplement the record. (ECF Nos. 55, 57.) For reasons discussed below, the Court denies the motions and denies the Petition.

II. BACKGROUND

Fluker challenges his 2011 convictions following guilty pleas to robbery and an enhancement for which Fluker was sentenced 20 to 50 years imprisonment. (ECF No. 26-16.) Fluker alleges he was deprived of constitutionally effective assistance of counsel because each of his attorneys failed to file a motion to withdraw his guilty pleas or request a competency evaluation. (ECF No. 18 at 9-13.) Fluker's challenges to his convictions were denied on direct appeal and state postconviction review. (ECF No. 27-12.)

The evidence available to the state court tended to establish the following.^[2]

On March 13, 2010, Fluker robbed an elderly slot-machine hostess and a liquor-store clerk, only to suffer blows to his legs and head with a baseball bat at the hands of liquor-store employees. (ECF Nos. 26-5 at 3-4; 26-6 at 6-9; 26-27 at 5, 8, 18-19; 33-1 at 7-8.) The State charged Fluker with two counts of felony robbery plus an elder enhancement. (ECF No. 26-1 at 2-3.)

Fluker's August 11, 2011 presentence investigative report indicated witnesses identified Fluker as the perpetrator of the robberies and Fluker was caught and beaten by some witnesses. (ECF No. 33-1 at 7-8.) At the state postconviction-evidentiary hearing, Fluker testified his first attorney told him the charges were not defensible because the State had video depicting Fluker committing the crimes. (ECF No. at 26-27 at 17.) The presentence investigative report further indicated Fluker had 12 prior-felony convictions (two from Hawaii, two from Nevada, and eight from California) and was released from custody less than five months before the robberies. (ECF No. 33-1 at 3-7.)

Fluker's first attorney testified at a state postconviction-evidentiary hearing that the State offered to settle Fluker's case before the preliminary hearing if Fluker pleaded guilty to all charges in exchange for the State's agreement to refrain from (1) filing a notice of habitual criminal;^[3] (2) filing a third charge for battery with a deadly weapon; and (3) pursuing additional charges related to the robberies. (ECF No. 26-27 at 32, 38.)

Counsel testified that he understood the State attributed 12 prior-felony convictions to Fluker and counsel discussed Fluker's criminal history with Fluker “at length.”

(ECF No. 26-27 at 41; see also ECF No. 33-1 at 2-7.) Counsel was also aware the State must provide certified copies of three prior-felony convictions to prove habitual criminal status, but “from time to time, ” prosecutors were unable to obtain certified copies. (ECF No. 26-27 at 33, 37-38, 42-43.) Counsel testified that he had no doubt the State could prove Fluker was a habitual criminal and counsel did not do “anything” to independently determine whether or not Fluker's prior convictions could be certified for habitual criminal status, other than “review the NCIC, ^[4] talk to [the prosecutor], talk to the detectives who were very familiar with [Fluker], and then talk to [Fluker] himself.” (Id. at 38, 42-44.) Counsel did not request certified copies of the prior felony convictions from the State because counsel believed it would cause the State to withdraw “from the entire negotiation process.” (Id. at 46.)

Fluker's signed plea agreement reflects, that in exchange for the guilty pleas, the State promised, inter alia, not to seek habitual offender status on certain conditions. (ECF Nos. 26-5 at 4-5; 26-6 at 4-11.) The agreement reflects Fluker affirmed his “prior criminal history consisted of multiple prior felony convictions.” (Id.) According to the agreement, the State retained discretion, inter alia, to “argue for an appropriate sentence at the time of sentencing, ” should Fluker (1) fail to appear at any scheduled proceeding in the matter; (2) suffer arrest in any jurisdiction for a violation of law; or (3) have misrepresented his prior criminal history. (ECF No. 26-5 at 4-5.)

The transcript of Fluker's change of plea hearing reflects Fluker understood the charges and possible penalties, including potential consecutive sentences for the convictions and enhancements (a maximum of 50-years imprisonment for consecutive sentences), and Fluker appropriately responded to the state district court's questions. (ECF No. 26-6 at 4-10.) Fluker affirmed that he had ample time to consult with his counsel, “explore all factual and legal issues about the case before entering pleas of guilty, ” and was completely satisfied with counsel. (Id. at 10.) Fluker confirmed that he reviewed and signed the Guilty Plea Memorandum with counsel and all statements there were true. (Id. at 10-11.) Fluker said that his pleas were made freely and voluntarily, without threats, promises, or coercion. (Id. at 9.) He also confirmed he understood his ultimate sentence would be decided solely by the court and no one else. (Id. at 8.)

Fluker did not appear for his initial sentencing hearing and was arrested for possession of a stolen vehicle. (ECF Nos. 26-8 at 3; 26-14 at 3-4; 46-1 at 6; 46-6; 49-1.) The court granted the State leave to file a notice of intent to seek habitual criminal status in accordance with the plea agreement. (ECF Nos. 26-8 at 3; 46-1 at 6; 46-7; 46-9.) The habitual criminal notice alleged only 11 prior-qualifying-felony convictions-two from Nevada, two from Hawaii, and seven from California. (ECF No. 26-9.)

Fluker's first attorney testified that Fluker “broached” the subject whether “he could withdraw his plea, ” when the State filed the habitual criminal notice, but counsel said that counsel advised Fluker, “we don't have a strong legal basis to do so.” (ECF No. 26-27 at 39-40.) According to counsel, Fluker “quickly abandoned that issue” and pursued other means to reduce his sentencing exposure. (Id.) Fluker's first attorney withdrew as counsel because of a conflict of interest resulting from Fluker's failed attempts to reduce his sentencing exposure. (ECF Nos. 26-10 at 4; 26-11; 26-27 at 26, 40.)

The court appointed a second attorney to represent Fluker for sentencing. (ECF Nos. 26-12; 26-13; 26-15 at 2; 26-27 at 49.) At sentencing, the State announced it was unable “to secure the felony convictions” to prove Fluker was a habitual criminal, explaining, “California basically just purges all those records after a period of time.” (ECF No. 26-15 at 7.) The State opted instead to pursue a maximum allowable sentence of 50-years imprisonment based on the crimes of conviction and Fluker's lengthy criminal record, which, the State argued, ran the “gamut of every type of crime that the Court can think of, short of sexual assault and murder, ” and included crimes of violence, drug-related offenses, and property crimes. (Id. at 7-11.) Fluker told the sentencing court that “everything [the prosecutor] said was true.” (Id. at 11.) Fluker's sentencing counsel argued that although Fluker “has a long and lengthy criminal history, ” Fluker had “shown some signs recently of making changes in this life.” (Id. at 5.) The court did not sentence Fluker as a habitual criminal but sentenced Fluker to the maximum allowable consecutive imprisonment of 15 years for each robbery, plus a 20-year consecutive term for the elder enhancement, which totaled 20 to 50 years.^[5] (Id. at 11-12.)

III. GOVERNING STANDARD OF REVIEW

A. Antiterrorism and Effective Death Penalty Act (“AEDPA”)

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the AEDPA:

(d) 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.

28 U.S.C. § 2254(d).

A state-court decision is contrary to clearly established United States Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d)(1), “if the state court applied a rule that contradicts the governing law set forth in [the Supreme Court's] cases or confronts facts that are materially indistinguishable from a [Supreme Court] decision and nevertheless arrives at a different result.” Lockyer v. Andrade, 538 U.S. 63, 73 (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)(2) “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.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application' clause requires the state court decision to be more than incorrect or erroneous . . . [rather] [t]he state court's application of clearly establish law must be objectively reasonable.” Id...