Hall v. Director Department of Corrections

Filing 89

ORDER. IT IS ORDERED that 47 petitioner's second amended petition for writ of habeas corpus is DENIED. The Clerk shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Chief Judge Gloria M. Navarro on 1/8/2019. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CECIL LAMAR HALL,

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Case No. 2:08-cv-01825-GMN-GWF
Petitioner,

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ORDER

v.

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DIRECTOR, DEPT. OF CORRECTIONS,

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Respondent.

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Before the court for a decision on the merits is an application for a writ of habeas
corpus filed by Cecil Lamar Hall, a Nevada Prisoner. ECF No. 47.

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I. BACKGROUND 1

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On January 26, 2006, Hall entered a guilty plea to one count of lewdness with a

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minor under the age of 14. Pursuant to pre-plea negotiations, the parties agreed to a

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stipulated sentence of ten years to life, with the State retaining the right to argue at the

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time of sentencing. The guilty plea agreement provided that Hall would be subject to

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lifetime supervision and that he would be required to register as a sex offender if

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released from custody.

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On February 8, 2006, Hall’s court-appointed counsel filed a motion to withdraw

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guilty plea based on a letter in which Hall claimed that “voices in his head” told him to

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“take the deal” and that he had been pressured into the agreement. Based on the

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This procedural background is derived from the exhibits filed under ECF Nos. 20, 21, 34, 42, and 43 and this court's
own docket.

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competency evaluations of two court-appointed mental health experts, the state district

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court concluded that Hall had failed to establish incompetence. The court also found no

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evidence and coercion or duress. Accordingly, the motion was denied.

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On June 8, 2006, Hall was sentenced to a term of life in prison with the possibility

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of parole after 10 years in accordance with the guilty plea agreement and the plea

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negotiations. The court entered its judgment of conviction on June 20, 2006. Hall

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appealed.

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The Nevada Supreme Court denied Hall’s appeal on May 9, 2007, with the
remittitur issuing on June 5, 2007. On March 5, 2008, Hall filed a petition for writ of

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habeas corpus in the state district court. The petition was denied by the district court on

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May 21, 2008. Hall appealed. The Nevada Supreme Court affirmed the lower court’s

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decision on November 14, 2008 with a clerk’s certificate issuing in lieu of remittitur on

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December 11, 2008.

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On December 24, 2008, Hall filed the federal petition for writ of habeas corpus

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that initiated this proceeding. On May 27, 2009, the Federal Public Defender (FPD)

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appeared on behalf of Hall and, on February 22, 2010, filed an amended petition. On

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July 1, 2011, the State filed its motion to dismiss for lack of exhaustion. On August 15,

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2011, Hall filed his opposition to the motion to dismiss and motion to stay this

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proceeding so he could return to state court and exhaust his unexhausted claims.

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On January 1, 2012, this court granted the motion for a stay. On August 10,

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2011, Hall filed his second post-conviction petition for writ of habeas corpus in the state

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district court. On January 18, 2013, the state court filed its findings of fact and

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conclusions of law denying the second post-conviction writ of habeas corpus. Hall

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appealed.

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On October 15, 2014, the Nevada Supreme Court entered its order affirming the

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state district court’s denial of the petition. The court found his petition was procedurally

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barred by Nev. Rev. Stat. §§ 34.726(1) (timeliness) and 34.810(2) (successiveness).

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This case was re-opened on February 5, 2015. Hall filed his second amended

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petition on May 6, 2015. Respondents filed a motion to dismiss certain claims in the

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petition, which the court granted in part, dismissing Grounds Two(c), Three, and Five as

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time-barred. The remaining claims have been fully-briefed and are before the court for a

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decision on the merits.

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II. STANDARDS OF REVIEW

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This action is governed by the Antiterrorism and Effective Death Penalty Act

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(AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under 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.

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A decision of a state court is "contrary to" clearly established federal law if the

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state court arrives at a conclusion opposite that reached by the Supreme Court on a

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question of law or if the state court decides a case differently than the Supreme Court

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has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-

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06 (2000). An "unreasonable application" occurs when "a state-court decision

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unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case."

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Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court

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concludes in its independent judgment that the relevant state-court decision applied

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clearly established federal law erroneously or incorrectly." Id. at 411.

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The Supreme Court has explained that "[a] federal court's collateral review of a

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state-court decision must be consistent with the respect due state courts in our federal

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system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a

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'highly deferential standard for evaluating state-court rulings,' and 'demands that state3

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court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773

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(2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti,

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537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks

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merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on

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the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101

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(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court

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has emphasized "that even a strong case for relief does not mean the state court's

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contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75

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(2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA

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standard as "a difficult to meet and highly deferential standard for evaluating state-court

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rulings, which demands that state-court decisions be given the benefit of the doubt")

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(internal quotation marks and citations omitted).

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"[A] federal court may not second-guess a state court's fact-finding process

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unless, after review of the state-court record, it determines that the state court was not

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merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th

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Cir. 2004); see also Miller-El, 537 U.S. at 340 ("[A] decision adjudicated on the merits in

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a state court and based on a factual determination will not be overturned on factual

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grounds unless objectively unreasonable in light of the evidence presented in the state-

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court proceeding, § 2254(d)(2).").

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Because de novo review is more favorable to the petitioner, federal courts can

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deny writs of habeas corpus under § 2254 by engaging in de novo review rather than

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applying the deferential AEDPA standard. Berghuis v. Thompkins, 560 U.S. 370, 390

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(2010).

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III. DISCUSSION
Ground One
In Ground One, Hall claims that his conviction and sentence are unconstitutional

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under the Fifth and Fourteenth Amendments because his guilty plea was not entered

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knowingly, intentionally, or voluntarily. In support of this claim, he alleges that his low
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intellectual functioning, his cognitive impairments, his psychiatric illness, and his

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physical limitations made it impossible for him understand, and voluntarily enter into, the

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guilty plea agreement. He also alleges that he did not understand the consequences of

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his guilty plea. In addition, he contends that his attorney coerced him into entering the

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guilty plea.

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Under federal law, to be valid, a guilty plea must be knowing, voluntary, and

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intelligent. U.S. v. Brady, 397 U.S. 742, 748 (1970). A guilty plea must represent “a

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voluntary and intelligent choice among alternative courses of action open to the

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defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoted source omitted). Advice for

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a guilty plea does not require a description of every element of the offense. Bargas v.

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Burns, 179 F.3d 1207, 1216 (9th Cir.1999) (citation omitted). The court looks to what a

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defendant reasonably understood at the time of the plea. U.S. v. Quan, 789 F.2d 711,

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713 (9th Cir.1986). The record must demonstrate that the defendant understands that he

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is waiving his privilege against self-incrimination, his right to a jury trial, and his right to

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confront accusers. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “Solemn declarations

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in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63,

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73–74 (1977); see also United States v. Anderson, 993 F.2d 1435, 1438 (9th Cir.1993)

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(defendant's statements, made in open court at time of his plea, are entitled to great

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weight).

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The guilty plea agreement Hall signed on January 26, 2006, described the

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consequences of entering a guilty plea, including a mandatory sentence of life with

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possibility of parole after a minimum of ten years and lifetime supervision as a sex

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offender. ECF No. 20-13, p. 2-4. The agreement also notified Hall of the rights and

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privileges he was waiving by entering a plea of guilty, including his privilege against self-

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incrimination, his right to a jury trial, and his right to confront accusers. Id., p. 4-5.

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Finally, the agreement also confirmed that Hall was signing the agreement voluntarily

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after consulting with his attorney. Id., p. 5-6.

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At his plea canvass that same day, Hall confirmed in open court that he had

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committed the acts supporting the charge of lewdness with a child under the age of 14.

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ECF No. 20-12, p. 4. He also confirmed the he was entering a guilty plea “freely and

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voluntarily.” Id., p. 4-5.

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Prior to entering his guilty plea, Hall was examined by Dr. Gregory Brown, M.D.,

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at defense counsel’s request, to determine whether Hall was competent to stand trial.

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ECF No. 21-22. Dr. Brown examined Hall again as one of the experts appointed by the

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state district court in relation to his motion to withdraw his guilty plea. ECF No. 21-23.

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Marvin Glovinsky, Ph.D., also examined Hall as the other expert appointed by the court.

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ECF No. 21-24. In denying Hall’s motion, the court found “that there is no showing of

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incompetency based on the competent psychological evaluations of Dr. Greg Brown

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and Dr. Marv Glovinsky, that there is no showing of coercion or duress based on the

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Guilty Plea Agreement signed by Defendant, and that Defendant’s claims are belied by

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the record.” ECF No. 20-21.

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On appeal, the Nevada Supreme Court addressed the validity of Halls plea as
follows:
Hall contends that the district court erred by denying his
presentence motion to withdraw his guilty plea. Specifically, Hall contends
that his guilty plea was not voluntarily or knowingly entered because he
was (1) “hearing voices” and incompetent at the time he entered his plea,
and (2) not advised that the offense to which he pleaded was nonprobationable. Hall also claims that the State could not demonstrate that it
was prejudiced by his filing a motion to withdraw the plea. We disagree
with Hall’s contention.
“A district court may, in its discretion, grant a defendant’s
[presentence] motion to withdraw a guilty plea for any ‘substantial reason’
if it is fair and just.1 In deciding whether a defendant has advanced a
substantial, fair, and just reason to withdraw a guilty plea, the district court
must consider the totality of the circumstances to determine whether the
defendant entered the plea voluntarily, knowingly, and intelligently.2 The
district court “has a duty to review the entire record to determine whether
the plea was valid. . . . [and] may not simply review the plea canvass in a
vacuum.”3 A defendant has no right, however, to withdraw his plea merely
because he moves to do so prior to sentencing or because the State failed
to establish actual prejudice.4 Nevertheless, a more lenient standard
applies to motions filed prior to sentencing than to motions filed after
sentencing.5

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An order denying a presentence motion to withdraw a guilty plea is
reviewable on direct appeal from the judgment of conviction as an
intermediate order in the proceedings.6 “On appeal from the district court’s
determination, we will presume that the lower court correctly assess the
validity of the plea, and we will not reverse the lower court’s determination
absent a clear showing of an abuse of discretion.”7 If the motion to
withdraw is based on a claim that the guilty plea was not entered
knowingly and intelligently, the burden to substantiate the claim remains
with the appellant.8
Our review of the totality of the circumstances reveals that Hall
entered his guilty plea voluntarily and knowingly. Although the record does
not indicate that Hall was advised by the court that his offense was nonprobationable, the written guilty plea, signed by Hall, reflects the parties
stipulation to a sentence of 10 years to life.9 In fact, the agreement states:
“I understand that as a consequence of my plea of guilty the Court must
sentence me to imprisonment in the Nevada State Prison for LIFE with the
possibility of parole with parole eligibility after a minimum of ten (10)
years.” (Emphasis added.) Hall has never challenged the veracity of the
stipulation.
Additionally, at the hearing on Hall’s motion, the district court was
informed that Hall, after an evaluation, was deemed competent prior to the
entry of his plea, and then again by both a psychiatrist and a clinical
psychologist after he expressed a desire to withdraw his guilty plea. Citing
to the doctors’ reports, the district court found that Hall failed to
substantiate his claim that he was incompetent and that his guilty plea was
not entered knowingly and intelligently. We agree and conclude that the
district court did not abuse its discretion in denying Hall’s presentence
motion to withdraw his guilty plea.
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Woods v. State, 114 Nev. 468, 475, 958, P.2d 91, 95 (1998)
(quoting State v. District Court, 85 Nev. 381, 385, 455 P.2d 923,
926 (1969); see also, NRS 176.165.

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See Crawford v. State, 117 Nev. 718, 721-22, 30 P.3d 1123,
1125-26 (2001).

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Mitchell v. State, 109 Nev. 137, 141, 848 P.2d 1060, 1062 (1993).

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See Hubbard v. State, 109 Nev. 110 Nev. 671 675-76, 877 P.2d
519, 521 (1994).

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See Molina v. State, 120 Nev. 185, 87 P.3d 533 (2004).

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NRS 177.045; Hart v. State, 116 Nev. 558, 562 n.2, 1 P.3d 969,
971 n.2 (2000) (citing Hargrove v. State, 100 Nev. 498, 502 n.3,
686 P.2d 222, 225 n.3 (1984)).

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Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986).

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See id. at 272, 721 P.2d at 368.

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See generally Little v. Warden, 117 Nev. 845, 851, 34 P.3d 540,
544 (2001) (holding that “[w]here it appears, in examining the
totality of the circumstances, that a defendant knew that probation
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was not available at the time of the entry of the guilty plea, we will
not vitiate an otherwise valid guilty plea”).
ECF No. 21-7, p. 2-5.
Hall offers lengthy argument as to why his mental impairments made it

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impossible for him to enter a knowing, intelligent, and voluntary guilty plea. ECF No. 87,

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p. 8-15. The threshold question before the court, however, is whether this court must

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defer to the state court’s denial of the claim under 28 U.S.C. § 2254(d). In this regard,

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Hall argues that the Nevada Supreme Court evaluated the lower court’s decision for an

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abuse of discretion, but “did not assess whether [his] plea was knowingly, intelligently,

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and voluntarily entered.” Id., p. 17. He further argues that neither Dr. Brown nor Dr.

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Glovinsky “never specifically opined whether [he] was competent to enter into the guilty

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plea agreement” and that the Nevada Supreme Court’s finding of facts “ignores the

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details” of the doctors’ reports. Id.

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Arguably Hall is correct that neither doctor rendered a specific opinion as to his

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competence at the time of the guilty plea agreement and the plea hearing. On the other

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hand, neither expert found that Hall lacked the necessary competence at the relevant

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time. Dr. Glovinsky found Hall competent as of the date of his report on March 26, 2006,

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and nothing in the report supports a finding that Hall was less competent two months

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earlier when he entered into the plea agreement. ECF No. 21-24. Dr. Brown ultimately

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concluded that “[t]he issue [Hall] has raised regarding his mental state at the time of

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signing the papers is more related to dissatisfaction with the results than with lack of

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ability to understand.” ECF No. 21-23, p. 4.

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This court recognizes that the question whether a guilty plea is knowing and

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voluntary goes beyond a mere determination that the defendant was competent at the

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time of the plea. See Godinez v. Moran, 509 U.S. 389, 400 (1993) (“In addition to

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determining that a defendant who seeks to plead guilty or waive counsel is competent, a

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trial court must satisfy itself that the waiver of his constitutional rights is knowing and

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voluntary.”). Here, however, the evidence before the Nevada Supreme Court when it

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adjudicated the claim was not sufficient to overcome the presumption that Hall made a
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voluntary and intelligent choice to enter a guilty plea. See Cullen v. Pinholster, 563 U.S.

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170, 182 (2011) (limiting § 2254(d)(1) review to the state court record). In addition, the

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excerpt from the state supreme court’s decision above belies Hall’s argument that the

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state supreme court merely rubber-stamped the lower court’s decision without

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independently assessing the validity of the guilty plea.

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Notwithstanding any mental impairments Hall may have had at the time, his guilty

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plea nonetheless represents “a voluntary and intelligent choice among the alternative

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courses of action” available at the time. Hill, 474 U.S. at 56. In this regard, the record

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reflects that the State dismissed 15 additional counts of lewdness with a minor under

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the age of 14 in exchange for the plea. ECF No. 20-6. And, in addition to the testimony

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of the victim, the evidence the State intended to present at trial included incriminating

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statements Hall had made in telephone calls from jail and evidence that, in a fashion

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similar to the allegations in the present case, he had sexually abused a niece in Detroit

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in the 1980s. ECF Nos. 20-10; ECF No. 20-19, p. 5.

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Likewise, the evidence before the Nevada Supreme Court did not demonstrate

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that Hall did not understand the consequences of entering his guilty plea or that his

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counsel unduly coerced him into pleading guilty. The Nevada Supreme Court correctly

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noted that the guilty plea agreement plainly indicated that, by virtue of the plea, Hall was

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subject to a mandatory life sentence with parole eligibility after a minimum of ten years

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and to lifetime supervision. ECF No. 20-13, p. 2-3. Hall confirmed in open court that he

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fully understood the plea agreement. ECF No. 20-12, p. 3-4. At the hearing on his

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motion to withdraw his plea, Hall claimed that he would not have agreed to such a

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sentence given that he had turned down an offer of two to 20 years. ECF No. 20-19.

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That offer was apparently made, however, prior to the preliminary hearing and before

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the State obtained recordings of Hall’s incriminating phone conversations and a

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favorable ruling on its motion to admit evidence of prior sexual abuse. Id., p. 4-5.

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The only evidence before the Nevada Supreme Court that Hall was coerced by
his attorney was a brief mention in a letter to his attorney of being “pushed in to it by
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being told constantly to take the deal.” ECF No. 20-14, p. 3. At the hearing on his

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motion to withdraw, Hall attributed his decision to hearing voices, but made no mention

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of undue pressure from his attorney. ECF No. 20-19, p. 4.

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Thus, this court will defer to the Nevada Supreme Court’s decision to deny

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Ground One having concluded that the decision was a reasonable application of clearly

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established Federal law and was based on a reasonable determination of the facts in

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light of the evidence presented in state court. Finally, the court has reviewed Hall’s

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various arguments as to why Pinholster does not preclude this court from considering

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evidence not before the Nevada Supreme Court when it adjudicated his claim. ECF No.

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87, p. 18-24. They are without merit.
Ground Two

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In Ground Two, Hall alleges he was deprived of effective assistance of counsel in

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violation of his constitutional rights because his counsel failed to adequately investigate

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his case (Two(A)) and failed to apprise him of the direct consequences of his guilty plea

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(Two(B)). 2
To demonstrate ineffective assistance of counsel in violation of the Sixth and

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Fourteenth Amendments, a convicted defendant must show 1) that counsel's

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representation fell below an objective standard of reasonableness under prevailing

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professional norms in light of all the circumstances of the particular case; and 2) that it

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is reasonably probable that, but for counsel's errors, the result of the proceeding would

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have been different. Strickland v. Washington, 466 U.S. 668, 687–94 (1984). To

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demonstrate ineffective assistance of counsel in the context of a challenge to a guilty

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plea, a petitioner must show both that counsel's advice fell below an objective standard

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of reasonableness as well as a “reasonable probability” that, but for counsel's errors, the

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petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v.

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An additional allegation of ineffective assistance of counsel due to counsel failure to obtain additional
psychiatric and neuropsychological evaluations was dismissed as time-barred. ECF No. 76.

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Lockhart, 474 U.S. 52, 58–59 (1985) (holding that the two-part Strickland test applies to

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challenges to guilty pleas based on ineffective assistance of counsel).
1. Ground Two(A)

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Hall claims counsel was deficient because he did not delve into Hall’s medical,

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psychiatric, and education records that would have revealed “Hall’s low intellectual

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functioning, his cognitive impairments, his psychiatric illness and his physical

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limitations.” ECF No. 47, p. 20. He further claims that counsel failed to investigate his

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claims of innocence which would have disclosed that the victim (his nephew) harbored

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ill will against him and had threatened to “get” him. Id. In addition, Hall contends that his

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counsel had a history of failing to investigate cases. Id., p. 20-21.
In Hall’s first state post-conviction proceeding, the Nevada Supreme Court

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correctly identified Strickland/Hill as the federal law governing Hall’s ineffective

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assistance of counsel claims. ECF No. 21-20, p. 3. Included in the court’s decision is

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the following:

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[A]ppellant claimed that trial counsel was ineffective for failing to
investigate after appellant informed trial counsel that he was innocent.
Appellant failed to demonstrate that his trial counsel's performance was
deficient or that he was prejudiced. Appellant failed to set forth what facts
or evidence trial counsel failed to discover with further investigation.
Appellant received a substantial benefit by entry of his guilty plea. In
exchange for his guilty plea to one count of lewdness with a child under
the age of fourteen years, appellant avoided going to trial on an additional
fifteen counts of lewdness with a child under the age of fourteen years.
Thus, appellant failed to demonstrate that there was a reasonable
probability that he would have insisted on going to trial. Therefore, we
conclude that the district court did not err in denying this claim.
Id., p. 3-4.
Hall argues the Nevada Supreme Court’s decision is not entitled to deference

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under § 2254(d) because the court premised the decision on the fact that Hall received

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a “substantial benefit” by pleading guilty without assessing whether counsel had fulfilled

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his obligation to investigate Hall’s case. ECF No. 87, p. 28-29. Be that as it may, Hall

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nonetheless fails to establish that counsel was ineffective under Strickland/Hill due to

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his alleged failure to investigate.
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First, counsel did obtain a psychiatric evaluation of Hall prior to the entry of the

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guilty plea that includes much of the information Hall claims counsel failed to uncover.

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ECF No. 21-22. Second, Hall fails to substantiate his claim of innocence with any

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credible evidence, most notably evidence to support his allegation that his nephew had

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reason to fabricate the sexual abuse allegations. Lastly, counsel’s alleged history of

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failing to investigate his cases has no bearing on whether he conducted an adequate

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investigation in this particular case. Given the strength of the evidence against him, as

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outlined above, Hall has not demonstrated that, but for counsel’s alleged failure to

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investigate, he would have insisted on proceeding to trial.
2. Ground Two(B)

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Hall contends that he assumed he was going to receive a sentence of two to 20

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years (not ten to life) and that counsel did not discuss with him the lifetime supervision

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requirement and did not that notify him that he would not be eligible for probation. He

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further alleges that his mental and physical limitations prevented him from

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understanding the consequences of the plea.

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The Nevada Supreme Court’s decision in Hall’s first state post-conviction
proceeding states as follows:
[A]ppellant claimed that trial counsel was ineffective for allowing the
district court to impose lifetime supervision. Appellant failed to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. The district court was required to impose the special
sentence of lifetime supervision due to appellant's conviction of the
offense of lewdness with a child.4 Appellant was further informed of the
penalty of lifetime supervision in the written guilty plea agreement, which
appellant acknowledged reading, signing and understanding. Therefore,
we conclude that the district court did not err in denying this claim.
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NRS 176.0931(1), (5)(c)(1).

Id., p. 4.
The state court’s decision was eminently reasonable. In addition to the guilty plea

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agreement, the transcript of the preliminary hearing conflicts with Hall’s claim that

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counsel had not explained the lifetime supervision requirement to him. ECF No. 20-4, p.
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2. And, for reasons discussed above and based on admissions he made to Dr.

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Glovinsky, Hall’s claims that he assumed he had agreed a sentence of two to 20 years

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and that he was not aware he would not be eligible for probation also lack credibility.

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ECF No. 21-24, p. 3. In addition, notwithstanding his mental impairments, the letter Hall

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wrote to counsel promptly after entering his guilty plea stands as contemporaneous

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evidence that Hall was capable of understanding, and did understand, the

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consequences of his guilty plea. ECF No. 20-14, p. 3.

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For the foregoing reasons, Hall is not entitled to habeas relief based on his
claims that he received ineffective assistance of counsel.
Ground Four
In Ground Four, Hall claims that the application of lifetime supervision conditions

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to his sentence violates his rights to due process under the Fifth and Fourteenth

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Amendments of the Constitution. He alleges that the conditions were never explained to

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him, nor were they spelled out in the lifetime supervision statute. In addition, he

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contends the conditions violate due process because they impose new restrictions and

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requirements without an opportunity for a defendant to challenge them.

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This claim is without merit. Whether a procedural due process violation has

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occurred requires a two-step inquiry: “the first asks whether there exists a liberty or

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property interest which has been interfered with by the State; the second examines

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whether the procedures attendant upon that deprivation were constitutionally

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sufficient.” Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460 (1989) (internal citations

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omitted). Even if lifetime supervision conditions deprive him of a liberty interest, Hall

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was afforded “all the constitutionally required procedural safeguards” by virtue of being

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a convicted sex offender. American Civil Liberties Union of Nevada v. Masto, 670 F.3d

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1046, 1059 (9th Cir. 2012).

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In addition, an action under 42 U.S.C. § 1983, not a habeas proceeding, is the

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proper method for Hall to challenge particular conditions that may be imposed upon him

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under lifetime supervision. The “core of habeas corpus” is relief that “terminates
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custody, accelerates the future date of release from custody, [or] reduces the level of

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custody.” Nettles v. Grounds, 830 F.3d 922, 929-30 (9th Cir. 2016) (quoting Wilkinson v.

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Dotson, 544 U.S. 74, 86 (2005) (Scalia J., concurring)). “[I]f a state prisoner's claim

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does not lie at ‘the core of habeas corpus,’ . . . it may not be brought in habeas corpus

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but must be brought, ‘if at all,’ under [42 U.S.C.] § 1983.” Id. at 931 (citations omitted).

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Thus, to the extent Ground Four challenges the conditions imposed on him under

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lifetime supervision, it is not cognizable in a federal habeas proceeding.

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IV. CONCLUSION

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For the reasons set forth above, Hall is not entitled to habeas relief and his

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petition will be denied.

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Certificate of Appealability

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Because this is a final order adverse to the petitioner, Rule 11 of the Rules

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Governing Section 2254 Cases requires this court to issue or deny a certificate of

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appealability (COA). Accordingly, the court has sua sponte evaluated the claims within

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the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.

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Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).

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Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner

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"has made a substantial showing of the denial of a constitutional right." With respect to

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claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists

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would find the district court's assessment of the constitutional claims debatable or

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wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463

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U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable

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jurists could debate (1) whether the petition states a valid claim of the denial of a

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constitutional right and (2) whether the court's procedural ruling was correct. Id.

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Having reviewed its determinations and rulings in adjudicating Hall’s petition, the

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court declines to issue a certificate of appealability for its resolution of any procedural

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issues or any of Hall’s habeas claims.

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IT IS THEREFORE ORDERED that petitioner's second amended petition for writ

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of habeas corpus (ECF No. 47) is DENIED. The Clerk shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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January
DATED THIS ___ day of __________, 2018.

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UNITED STATES DISTRICT JUDGE

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