Personnel v. Neven
| Decision Date | 23 September 2013 |
| Docket Number | 3:10-cv-00480-LRH-WGC |
| Court | U.S. District Court — District of Nevada |
| Parties | MICHAEL ROBERT PERSON, Petitioner, v. DWIGHT NEVEN, et al., Respondents. |
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner who is represented by counsel. This matter comes before the Court on the merits of the amended petition.
On November 17, 2003, the State charged petitioner and three co-defendants (Nathaniel McKinney, Jerome Henderson, and Torrance Alonzo Mills) of the following: Count I, conspiracy to commit robbery, and Counts II-V, robbery with the use of a firearm. (Exhibit 3).1 The victims of the armed robbery were Matthew Matherly, Donald Foster, Angel Favela, and Beth Roberts. (Id.). Following the preliminary hearing, during which petitioner was represented by the public defender, the court bound over petitioner, Henderson, and Mills.2 (Exhibits 4 and 5).
The State charged petitioner, Henderson, and Mills in the Second Judicial District Court with Count I, conspiracy to commit robbery, and Counts II-V, robbery with the use of a firearm. (Exhibit 7). Petitioner pled not guilty. (Exhibit 8). Petitioner was represented by Dennis Cameron. (Id., at p. 3).
On February 26, 2004, petitioner changed his plea, pursuant to a guilty plea memorandum, pleading guilty to two counts of robbery with the use of a firearm involving victims Favela and Roberts. (Exhibit 13, at p. 4; Exhibit 14).
On April 22, 2004, the court held the sentencing hearing, but continued the matter so that counsel could obtain a psychological evaluation of petitioner. (Exhibit 19). At the continued sentencing hearing, held June 29, 2004, the court sentenced petitioner to 40-180 months on each of the two counts, with a like consecutive term for the use of a deadly weapon as to both counts, with the counts to run consecutively. (Exhibit 21, at p. 5). The judgment of conviction was filed June 29, 2004. (Exhibit 22).
Petitioner appealed the judgment of conviction. (Exhibits 24 & 26). On December 2, 2004, the Nevada Supreme Court affirmed the conviction. (Exhibit 31). Remittitur issued on December 28, 2004. (Exhibit 32).
On November 1, 2005, petitioner filed a post-conviction habeas petition in state district court. (Exhibit 38). Petitioner filed a supplement to the petition on November 9, 2006. (Exhibit 41). On July 18, 2007, the state district court dismissed several grounds of the petition, and found that petitioner had abandoned another ground. (Exhibit 48). The court ordered an evidentiary hearing on several claims: alleged attorney conflict of interest; amount of restitution; clerical mistake in the judgment of conviction; and failure of counsel to hire an expert. (Id.). The evidentiary hearing was held on March 25, 2008. (Exhibit 52). The state district court denied the habeas petition, except as to the amount of restitution. (Id.).
On April 15, 2008, petitioner filed a motion to modify sentence. (Exhibit 53). On April 7, 2009, the state district court issued a written order denying the motion to modify sentence, and denying the post-conviction habeas petitions, except as to the amount of restitution. (Exhibit 59).On April 15, 2009, the court filed an amended judgment, changing the amount of restitution. (Exhibit 61).
Petitioner appealed from the denial of his state habeas petition and motion to modify sentence. (Exhibit 62). On April 8, 2010, the Nevada Supreme Court entered an order of affirmance. (Exhibit 74). The Court denied petitioner's petition for rehearing on June 9, 2010. (Exhibit 76). Remittitur issued on July 8, 2010. (Exhibit 77).
On August 3, 2010, petitioner filed a federal habeas petition in this Court. (ECF No. 2). The petition contained three grounds. (ECF No. 2). By order filed November 2, 2010, this Court granted petitioner's motion to appoint counsel and directed respondents to respond to the petition. (ECF No. 7). Respondents filed a motion to dismiss on February 15, 2011. (ECF No. 11). On July 21, 2011, this Court granted in part, and denied in part, respondents' motion to dismiss. (ECF No. 24). Petitioner filed a notice of election to abandon only portions of Grounds One and Two, and sought to file an amended petition raising only exhausted claims. (ECF No. 30). By order filed March 14, 2012, this Court granted petitioner's request to file an amended habeas petition that contains only exhausted claims. (ECF No. 34). Petitioner filed an amended petition on March 29, 2012. (ECF No. 36). On June 18, 2012, respondents filed an answer to the amended petition. (ECF No. 42). Petitioner filed a traverse on June 26, 2012. (ECF No. 48). The Court now addresses the merits of the amended petition.
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:
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) (). 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. 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 setin § 2254(d) on the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011).
In Ground I of the amended petition, petitioner claims:
I allege that my state court conviction is unconstitutional, in violation of my Fifth, Sixth, and Fourteenth Amendment rights to due process of law, and to conflict-free assistance of counsel.
(Amended Petition, ECF No. 36, at p. 4). Petitioner alleges that his defense counsel, Dennis Cameron, acted under an actual conflict of interest because he had previously represented victim Matherly and Matherly's brother in several criminal cases. Petitioner alleges that his defense counsel failed to secure a valid waiver of the conflict. Petitioner argues that the Nevada Supreme Court's decision was unreasonable in light of Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980).3 (Amended Petition, at pp. 4-5, 8-20).
Where the constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Until a defendant shows that counsel was actively representing conflicting interests, the defendant has not established the constitutional predicate for a claim of ineffective assistance of counsel. Id. at 350. Absent objection, a defendant must demonstrate that a conflict of interest actually adversely affected the adequacy of counsel's representation. Mickens v. Taylor, 535 U.S. 162, 168 (2002).
The mere possibility of a conflict of interest is insufficient to establish a constitutional violation. Cuyler v. Sullivan, 446 U.S. at 350. The petitioner must make a factual showing on the record that an actual conflict existed. Morris v. California, 966 F.2d 448, 455 (9th Cir. 1992). Potentially divided allegiances do not...
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