Hymon v. Williams, 2:09-cv-1124-RLH-LRL
| Decision Date | 15 March 2011 |
| Docket Number | 2:09-cv-1124-RLH-LRL |
| Parties | RODERICK HYMON, Petitioner, v. BRIAN WILLIAMS, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This is an action on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, brought by petitioner Roderick Hymon, appearing pro se. Before the court is respondents' Motion to File Pleading in Excess of Thirty Pages and their Answer to the surviving grounds of the petition. (ECF No. 26.) Petitioner did not file a reply. That motion shall be granted and the Court shall address the petition.
Petitioner was convicted on December 2, 2002, following a jury trial wherein petitioner represented himself with standby counsel. Exhibits 54-61.1 Petitioner was convicted on three of five charges: Robbery with the Use of a Deadly Weapon, Larceny from the Person, andAssault with a Deadly Weapon, Counts II, III, and V, respectively.2 Counsel was appointed to represent petitioner for purposes of sentencing and direct appeal. Exhibit 64. At sentencing, petitioner was adjudged an habitual criminal as to all counts. He was sentenced to concurrent terms of life with the possibility of parole after ten years on Counts II and III and a single term of life with the possibility of parole after ten years on Count V to run consecutive to Count III. Exhibit 67. The Judgment of Conviction was entered on April 15, 2003. Exhibit 68.
Petitioner appealed raising claims of trial court error as to the habitual criminal enhancement, judicial misconduct, inadequate Faretta canvass, and also presented certain Anders/Sanchez arguments.3 Exhibit 86. The conviction was affirmed by the Nevada Supreme Court on May 26, 2005. Exhibit 96; See Hymon v. State, 121 Nev. 200, 111 P.3d 1092 (2005). A petition for rehearing was denied. Exhibit 98.
On August 19, 2005, petitioner filed a petition for post-conviction relief in the state district court. Exhibit 99. The petition was denied and petitioner appealed, raising thirty-four grounds for relief. Exhibit 103 and 109. The Nevada Supreme Court affirmed denial of relief on post-conviction, but remanded the matter for a hearing on pre-trial detention credits and a new sentencing to properly address the habitual criminal enhancements. Exhibit 112. New counsel was appointed for re-sentencing, which was finally conducted on March 12, 2008. Exhibit 115 and 120. Petitioner was sentenced to three concurrent ten to twenty-five year terms. Exhibit 120.
In a subsequent state post-conviction petition, petitioner claimed his sentence was invalid "under the constitutional guarantees of due process of law, equal protection of the laws and a reliable sentence due to eneffective [sic] assistance of counsel." Exhibit 122. This petition wasdenied and the denial was upheld on appeal. Exhibits 133 and 140. The instant petition was dated May 27, 2009 and was filed with this Court on June 29, 2009 after the matter of petitioner's filing fee was resolved.
In his federal petition, petitioner raised some 45 claims for relief. The petition presents a pattern of claims wherein for the most part, a group of claims rely on a single statement of facts to support several alleged violations.
As a result of respondents' Motion to Dismiss, Grounds 5, 8, 14, 17, 20, 26, 32, 34, 36, 38, and 41 remain for further consideration.
Respondents contend that certain claims in the petition must be denied because they are conclusory; providing insufficient factual support for the allegations presented. Specifically, Respondents argue that Ground 5 is insufficiently pled because petitioner fails to allege that counsel knew or had reason to know that exculpatory materials existed or had been withheld; that Ground 8 is inadequately pled because, while petitioner argues he suffered double jeopardy in being convicted of larceny from the person which he alleges is a lesser-included charge of robbery, and assault which he alleges is a lesser-included charge of robbery with the use of a deadly weapon, he fails to discuss the various elements of those crimes or how they violate double jeopardy; that Ground 14 is inadequate because petitioner failed to show that the distance in inches or feet between the perpetrator and the victim is an element of the crime of assault with a deadly weapon when claiming the State did not prove all the necessary elements of that crime; that Ground 17 is conclusory because his claim that the court improperly denied a lesser-included instruction on the charge of assault with a deadly weapon does not demonstrate that drawing a deadly weapon in a threatening manner is actually a "lesser-included" of the assault charge; and, finally, that Grounds 34 and 36 are inadequately pled because the petitioner does not specifically identify what dangers, disadvantagesand consequences that the trial court failed to mention during the Faretta canvasses.
Conclusory allegations, not supported by a statement of specific facts, do not warrant habeas corpus relief. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996). A petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified. These facts must consist of sufficient detail to enable the court to determine, from the face of the petition alone, whether the petition merits further habeas corpus review. Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990).
Respondents' argument fails as to Grounds 5, 8, 14, 34 and 36. Those grounds state sufficient facts to allow the court to conclude the claims warrant review. Ground 17, however, is conclusory. Petitioner fails to identify the elements of the two crimes in any way so as to show even the possibility of one being the lesser included of the other. Thus, this Court finds that Ground 17 does not warrant further review and it shall be dismissed.
28 U.S.C. §2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the standards of review that this Court applies to the petition in this case:
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 Supreme Court precedent, within the meaning of 28 U.S.C. §2254, "if the state court applies a rule that contradicts thegoverning 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, 123 S.Ct. 1166, 1173 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495 (2000), and citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843 (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 facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. at 74, 123 S.Ct. at 1174 (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). 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, 120 S.Ct. 1495).
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), cert. denied, 122 S.Ct. 324 (2001). With respect to pure questions of fact, "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).
B. Ineffective Assistance of Counsel
The majority of the surviving claims raise allegations of the ineffective assistance of counsel on appeal. Effective assistance of appellate counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405, 105 S.Ct. 830, 832-841 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to Strickland's two-pronged test. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989); United States v. Birtle, 792F.2d 846, 847 (9th Cir.1986); See, also, Penson v. Ohio, 488 U.S. 75 (1988) ().
Under Styrickland, to prove ineffective assistance of counsel, petitioner must prove (1) that his attorney's actions were outside the wide range of professionally competent assistance, and (2) that counsel's action's prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-90 (1984). Thus, petitioner must show that his appellate counsel's performance was objectively unreasonable in failing to identify and bring claim on appeal and that there...
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