Blackwell v. Williams et al

Filing 6

ORDER Granting 4 Motion/Application for Leave to Proceed in forma pauperis. Clerk of Court shall file petition. Grounds 2 through 6 are DISMISSED. Clerk shall add Catherine Cortez Masto as counsel for respondents. Clerk shall electronically s erve upon respondents a copy of petition and this order. Clerk shall return to petitioner a copy of the petition. Respondents have 45 days to respond to petition. Petitioner shall have 45 days from date on which answer is served to file reply. Signed by Judge Andrew P. Gordon on 7/22/13. (Copies have been distributed pursuant to the NEF - EDS)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8
9

JERROD G. C. BLACKWELL,

10

Petitioner,

11

vs.

12

Case No. 2:13-cv-00491-APG-GWF

BRIAN E. WILLIAMS,

13

ORDER

Respondents.

14
15
16
17

Petitioner has submitted an application to proceed in forma pauperis (#4). The court finds
that petitioner is unable to pay the filing fee.
The court has reviewed the petition for a writ of habeas corpus pursuant to Rule 4 of the

18

Rules Governing Section 2254 Cases in the United States District Courts. The court will dismiss

19

some grounds because they lack merit. The court will serve the petition upon respondents for a

20

response to the remaining ground.

21

In 2009, petitioner was a defendant in at least three criminal cases in the Eighth Judicial

22

District Court of the State of Nevada. The current petition concerns case C253682. Petitioner was

23

videotaped taking the purse of a casino patron and attempting to leave the casino, when he was

24

apprehended. Petition, at 3b.1 Petitioner agreed to plead guilty to one count of grand larceny. The

25

prosecution sought adjudication of petitioner as a habitual criminal. The state district court agreed,

26
27
28

1

Many of the pages of the petition are photocopies of pages that petitioner has filed in other
proceedings. The original page numbers are on the bottom left. The page numbers that petitioner
added for this action are on the bottom right; the court uses these page numbers.

1

sentencing petitioner to life imprisonment with eligibility for parole starting after ten years.

2

Petition, at 3a-3b. See also Nev. Rev. Stat. § 207.010(1)(b).

3
4

Ground 1 is a claim that the sentence is excessive and violates the Eighth Amendment.
Respondents will need to respond to this ground.

5

The remaining grounds, 2 through 6, are claims of ineffective assistance of counsel. A

6

petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense

7

attorney’s representation “fell below an objective standard of reasonableness,” Strickland v.

8

Washington, 466 U.S. 668, 688 (1984), and (2) that the attorney’s deficient performance prejudiced

9

the defendant such that “there is a reasonable probability that, but for counsel’s unprofessional

10

errors, the result of the proceeding would have been different,” id. at 694. “[T]here is no reason for

11

a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to

12

address both components of the inquiry if the defendant makes an insufficient showing on one.” Id.

13

at 697.

14

Grounds 2 through 6 suffer from a fundamental misunderstanding of how the habitual-

15

criminal statutes operate with the statutes defining the principal crime and its sentence. The

16

principal crime in this case is grand larceny, defined in Nev. Rev. Stat. § 205.220. The penalties for

17

grand larceny are contained in Nev. Rev. Stat. § 205.222. If a person has been convicted of felonies

18

three times previously, then a court may adjudicate the person to be a habitual criminal and impose

19

one of three sentences outlined in Nev. Rev. Stat. § 207.010(1)(b). Petitioner argues incorrectly

20

that Nev. Rev. Stat. § 207.016(1) requires the state district court first to impose a sentence for grand

21

larceny and then to impose a sentence for being a habitual criminal. He then argues that the district

22

court failed to follow that procedure, and that counsel provided ineffective assistance by not

23

objecting to the district court’s actions. Section 207.016(1) states, “A conviction pursuant to NRS

24

207.010 . . . operates only to increase, not to reduce, the sentence otherwise provided by law for the

25

principal crime.” The statute says nothing about imposing two sentences. Contrary to petitioner’s

26

argument, state law does not allow for a sentence on the principal crime and then a sentence for

27

being a habitual criminal. There is only one sentence. The habitual-criminal sentence supersedes

28
-2-

1

the stated sentence for the principal crime. Cohen v. State, 625 P.2d 1170, 1172 (Nev. 1981); Lisby

2

v. State, 414 P.2d 592, 595-96 (Nev. 1966).

3

Petitioner’s sentence does comply with what § 207.016(1) actually requires. The sentence

4

that he received pursuant to § 207.010(1)(b) is greater than any possible sentence he could have

5

received solely for grand larceny, as provided in § 205.222. Consequently, the one sentence of life

6

imprisonment with eligibility for parole beginning after 10 years is a legal sentence, and it does not

7

exceed any applicable statutory limits. Counsel’s lack of objection to the issues raised in grounds 2

8

through 6 was not deficient performance. Grounds 2 through 6 are without merit on their face, and

9

the court dismisses them.

10
11
12
13

IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (#4) is
GRANTED. Petitioner need not pay the filing fee of five dollars ($5.00).
IT IS FURTHER ORDERED that the clerk of the court shall file the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

14

IT IS FURTHER ORDERED that grounds 2 through 6 of the petition are DISMISSED.

15

IT IS FURTHER ORDERED that the clerk shall add Catherine Cortez Masto, Attorney

16
17

General for the State of Nevada, as counsel for respondents.
IT IS FURTHER ORDERED that the clerk shall electronically serve upon respondents a

18

copy of the petition and this order. In addition, the clerk shall return to petitioner a copy of the

19

petition.

20

IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from the date

21

on which the petition was served to answer or otherwise respond to the petition. If respondents file

22

and serve an answer, then they shall comply with Rule 5 of the Rules Governing Section 2254

23

Cases in the United States District Courts, and then petitioner shall have forty-five (45) days from

24

the date on which the answer is served to file a reply.

25

IT IS FURTHER ORDERED that any exhibits filed by the parties shall be filed with a

26

separate index of exhibits identifying the exhibits by number or letter. The CM/ECF attachments

27

that are filed further shall be identified by the number or numbers (or letter or letters) of the exhibits

28
-3-

1

in the attachment. The hard copy of any additional state court record exhibits shall be

2

forwarded—for this case—to the staff attorneys in Las Vegas.

3

IT IS FURTHER ORDERED that henceforth, petitioner shall serve upon respondents or, if

4

appearance has been entered by counsel, upon the attorney(s), a copy of every pleading, motion or

5

other document submitted for consideration by the court. Petitioner shall include with the original

6

paper submitted for filing a certificate stating the date that a true and correct copy of the document

7

was mailed to the respondents or counsel for the respondents. The court may disregard any paper

8

received by a district judge or magistrate judge that has not been filed with the clerk, and any paper

9

received by a district judge, magistrate judge, or the clerk that fails to include a certificate of

10
11

service.
DATED:

July 22, 2013.

12
13

_________________________________
ANDREW P. GORDON
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-