Lyons v. Johnson

Decision Date05 October 2022
Docket Number2:19-cv-00966-APG-NJK
PartiesDAVON LYONS, Petitioner, v. CALVIN JOHNSON,[1] et al., Respondents.
CourtU.S. District Court — District of Nevada
ORDER

ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

Petitioner Davon Lyons filed a counseled second amended petition (Petition) for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 22. Lyons is not entitled to federal habeas relief for any of his claims, so I deny the Petition and a Certificate of Appealability.

I. BACKGROUND[2]

Several witnesses testified at the grand jury proceedings regarding Lyons. Alan Adams testified that on February 11, 2013 in North Las Vegas, Nevada, he returned home and parked his car in his garage. ECF No. 38-3 at 7. When he exited the car there were two men in his garage “and one held a pistol, pointed it at [Adams'] head and they demanded that [Adams] let them into the house.” Id. Adams complied, and the men “move[d him] into [his] living room, [and] had [him] lie face down on the floor.” Id. at 8. Realizing that some golfers outside could likely see what was happening through a window the men moved Adams to an adjoining room. Id. The men ransacked Adams' home and garage, took various items, ordered Adams to continue to stay on the floor, and left. Id. at 8-9.

James Talley testified that on February 26, 2013, his wife Melissa Talley returned to their Las Vegas home around 10:00 p.m., and he heard her scream from their garage. Id. at 12. James opened the door to the garage and saw “a guy standing next to [Melissa] pointing a gun at her.” Id. Another man entered the garage, pointed a gun at James, and told James “to be quiet, turn around, get back inside the house and get on the floor with [his] hands up and face down.” Id. James and Melissa complied. Id. The men ransacked the house and took various items before leaving. Id. at 13.

William Johnson testified that on February 28, 2013, he and his wife Teresa Johnson returned home from the dog park. Id. at 17. They went inside and heard a knock, and when William opened the garage door, [t]here were two gentlemen in the garage, each had a gun and they told [Johnson] to get in the house and get on the floor.” Id. at 18. The men entered the house and ordered Teresa to also get on the floor. Id. William and Teresa complied. Id. The men ransacked the house, took various items, cut the telephone lines, and broke Teresa's cell phone. Id.

Lyons was indicted on 31 charges arising out of the three robberies: one count of burglary, three counts of burglary while in possession of a deadly weapon, two counts of coercion, three counts of conspiracy to commit burglary, one count of conspiracy to commit coercion, three counts of conspiracy to commit first-degree kidnapping, three counts of conspiracy to commit robbery, two counts of first-degree kidnapping with the use of a deadly weapon, three counts of first-degree kidnapping (victim 60 years of age or older), one count of possession of controlled substance with the intent to sell, two counts of possession of stolen property, two counts of possession of stolen property (firearm), two counts of robbery with the use of a deadly weapon, and three counts of robbery with the use of a deadly weapon (victim 60 years of age or older). ECF No. 7-1.

Lyons agreed to plead guilty to the following counts: (1) first-degree kidnapping, (2) conspiracy to commit robbery, (3) robbery with the use of a deadly weapon, (4) conspiracy to commit kidnapping, (5) robbery with the use of a deadly weapon (victim 60 years of age or older), (6) conspiracy to commit robbery, (7) burglary, and (8) possession of stolen property. ECF No. 7-2 at 2. The parties jointly recommended a sentence for the first-degree kidnapping charge of 15 years imprisonment, with parole eligibility starting after 5 years. Id. at 3. The prosecution did not oppose having the sentences for counts 1 and 2 run concurrently to each other, counts 3 and 4 running concurrently to each other, counts 5 and 6 running concurrently to each other, and 7 and 8 running concurrently to all other counts. Id. However, the prosecution retained the right to ask for those three groups (counts 1 and 2, counts 3 and 4, and counts 5 and 6) to run consecutively. Id.

On February 13, 2015, the state district court entered a judgment of conviction that followed the guidance of the guilty plea agreement. See ECF No. 7-3. The sentences were: (1) 5 to 15 years, (2) 2 to 5 years, concurrent with count 1, (3) 5 to 15 years, plus a consecutive 2 to 5 years for use of a deadly weapon, consecutive to count 1, (4) 2 to 5 years, concurrent with count 3, (5) 5 to 15 years, plus a consecutive 2 to 10 years for use of a deadly weapon, consecutive to count 4, (6) 2 to 5 years, concurrent with count 5, (7) 3 to 9 years, concurrent with count 6, and (8) 3 to 9 years, concurrent with count 7. Id. The court pronounced an aggregate sentence of 19 to 60 years. Id.

Lyons appealed his judgment of conviction, and the Nevada Court of Appeals affirmed on August 25, 2015. ECF No. 7-6. On July 18, 2016, the state district court entered an amended judgment of conviction removing the aggregate sentence. ECF No. 7-7. On September 19, 2016, Lyons filed a state post-conviction petition. ECF No. 7-8. Following an evidentiary hearing, the state district court denied the petition on April 4, 2017. ECF Nos. 7-11, 7-12. Lyons appealed and the Nevada Court of Appeals affirmed on June 11, 2019. ECF No. 7-15.

On October 10, 2019, Lyons filed a proper-person motion to amend or modify the judgment of conviction. ECF No. 43-20. The state district court denied the motion. ECF No. 4221. Around this time, Lyons commenced this federal habeas corpus proceeding. See ECF No. 5. I appointed the Federal Public Defender to represent him. ECF No. 4. Lyons' federal counsel filed in the state court a motion to correct an illegal sentence and a post-conviction petition challenging the computation of time. ECF Nos. 43-22, 43-24. The state district court granted Lyons' motion, rescinded the amended judgment of conviction, and reinstated the original judgment of conviction with the aggregate sentence. ECF No. 43-31.

II. GOVERNING STANDARD OF REVIEW

The standard of review generally applicable in habeas corpus cases is set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA).

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 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.” 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) “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. The state court's application of clearly established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation omitted).

The Supreme Court has instructed that [a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” and “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (simplified)).

III. DISCUSSION
A. Ground 1-Ineffective Assistance of Trial Counsel

In ground 1 of his Petition, Lyons alleges that his trial counsel was ineffective. ECF No. 22 at 8. In Strickland v. Washington, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel, requiring the petitioner to demonstrate (1) that the attorney's “representation fell below an objective standard of reasonableness,” and (2) that the attorney's deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 668 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a “strong presumption that counsel's conduct falls within the wide range of reasonable professional...

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