Anscott v. Williams

Filing 45

ORDER. IT IS HEREBY ORDERED that 11 Anscott's petition for a writ of habeas corpus is DENIED on its merits, and this action is DISMISSED with prejudice. Because reasonable jurists would not find my decision to be debatable or wrong, I declin e to issue a certificate of appealability. The Clerk of Court is directed to ENTER JUDGMENT in favor of respondents and against Anscott, DISMISS this action with prejudice, and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 3/8/2018., Case terminated. (Copies have been distributed pursuant to the NEF - ADR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Jess Guy Anscott, 5 Petitioner 6 Order Dismissing Petition and Closing Case v. 7 2:13-cv-01833-JAD-VCF Brian Williams, et al., [ECF No. 11] 8 Respondents 9 10 Pro se petitioner Jess Guy Anscott—an adjudicated habitual criminal—is on parole after 11 serving ten years in prison for pleading guilty to possessing a stolen vehicle.1 He petitions for a 12 writ of habeas corpus under 28 U.S.C. § 2254.2 Anscott forever abandoned his unexhausted 13 claims,3 so I now review his remaining claims on their merits. I find that they are meritless, so I 14 dismiss his petition with prejudice. 15 Background 16 Anscott accepted a plea bargain in one of three concurrent criminal cases that he had 17 pending. Under the plea agreement, he pled guilty to one count of felony possession of a stolen 18 vehicle4 and stipulated to a 5–12 1/2-year sentence under the “small” Nevada habitual criminal 19 statute in all three state-court cases.5 The State did not oppose Anscott being released from 20 custody pending sentencing, but the plea agreement imposed a 10-years-to-life sentence under 21 22 23 1 ECF No. 11 at 2. 2 ECF No. 11. 3 ECF No. 29. 4 ECF Nos. 16-17, 16-18, and 16-19. 5 ECF No. 16-19 at 2. 24 25 26 27 28 1 the “large” Nevada habitual criminal statute if he failed to appear for sentencing.6 Anscott failed 2 to appear, so he was held to his agreement.7 He challenged his conviction in the state courts on 3 direct appeal and post-conviction review. 4 Standard of Review 5 The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a “highly 6 deferential” standard for evaluating a state court’s decision to deny a petition for habeas corpus 7 on its merits.8 A federal court may not grant habeas relief merely because it might conclude that 8 the state court’s decision was incorrect.9 The federal district court may grant relief only if the 9 state court’s decision was: (1) contrary to or an unreasonable application of clearly established 10 U.S. Supreme Court law; or (2) was based on an unreasonable determination of the facts in light 11 of the evidence presented at the state-court proceeding.10 12 A state court’s decision is contrary to clearly established law only if it applies a rule that 13 contradicts the governing law or if the decision confronts a set of facts that are materially 14 indistinguishable from a Supreme Court decision and nevertheless arrives at a different result.11 15 A state court need not even be aware of Supreme Court precedents, as long as neither the 16 reasoning nor the result of its decision contradicts them.12 “A federal court may not overrule a 17 state court for simply holding a view different from its own, when the precedent from [the 18 Supreme] Court is, at best, ambiguous.”13 And when a state court’s factual findings are 19 20 6 Id. at 2–3. 21 7 ECF Nos. 16-20, 16-21, 17-19 and 17-24. 22 8 Cullen v. Pinholster, 563 U.S. 170 (2011). 9 Id. at 202. 23 24 10 Id. at 181–88; see also 28 U.S.C. § 2254(d). 11 See, e.g., Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003). 27 12 Id. 28 13 Id. at 16. 25 26 2 1 challenged, federal courts “must be particularly deferential” to those findings.14 State-court 2 factual findings are presumed to be correct unless the petitioner can rebut that presumption by 3 clear and convincing evidence.15 The petitioner bears the burden of proving by a preponderance 4 of the evidence that he is entitled to habeas relief.16 5 6 Discussion A. 7 Ground 1(a): Ineffective assistance of counsel—alleged coercion of guilty plea In ground 1(a), Anscott alleges that he was denied effective assistance of counsel in 8 violation of the Sixth and Fourteenth Amendments because counsel coerced him into pleading 9 guilty. Counsel allegedly misrepresented that Anscott would certainly receive large habitual- 10 criminal treatment if convicted at trial. Anscott urges that counsel failed to advise him that the 11 non-violent nature of his criminal history actually made large habitual-criminal treatment 12 unlikely.17 13 Defense counsel Nadine Morton testified at the state post-conviction evidentiary hearing 14 that she advised Anscott prior to his plea that: (1) “he was potentially facing habitual—it wasn’t 15 mandatory habitual, but he was eligible for the large habitual, and we discussed the different 16 options a judge had in sentencing him to the habitual”; (2) the sentencing judge in this particular 17 one of the three cases would “generally not habitualize somebody for non-violent offenses,” but 18 his separate counsel in his other two cases would have to address the sentencing tendencies of the 19 judge in those cases; and (3) “he had to know that he was still at risk or jeopardy of, if we lost 20 any one of the three trials, that he was eligible for the large habitual.”18 21 22 23 14 Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004); see also 28 U.S.C. § 2254(d)(2). 15 28 U.S.C. § 2254(e)(1). 16 Cullen, 563 U.S. at 569. 27 17 ECF No. 11 at 3–5. 28 18 ECF No. 19-14 at 18–19. 24 25 26 3 The two-pronged test of Strickland v. Washington19 applies to a challenge to a guilty plea 1 2 based on alleged ineffective assistance of counsel.20 A petitioner seeking to set aside a guilty 3 plea due to ineffective assistance of counsel must demonstrate that: (1) his counsel’s performance 4 fell below an objective standard of reasonableness; and (2) the defective performance resulted in 5 actual prejudice.21 On the performance prong, the question is not what counsel might have done 6 differently but whether counsel’s decisions were reasonable from counsel’s perspective at the 7 time; and I must start with a strong presumption that counsel’s conduct fell within the wide range 8 of reasonable conduct.22 On the prejudice prong, the petitioner must demonstrate a reasonable 9 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 10 been different.23 In the guilty-plea context, the petitioner “must show that there is a reasonable 11 probability that, but for counsel’s errors, he would not have pleaded guilty and would have 12 insisted on going to trial.”24 This determination is “made objectively, without regard to the 13 ‘idiosyncrasies of the particular decisionmaker.’”25 14 The Nevada Supreme Court’s rejection of Anscott’s claim was neither contrary to nor an 15 unreasonable application of clearly established federal law. The Court held that Anscott “failed 16 to demonstrate that [his trial] counsel’s performance was deficient or that he was prejudiced[,]” 17 especially in light of his counsel’s testimony that she advised him on the possibility of large 18 19 20 19 Strickland v. Washington, 466 U.S. 668 (1984). 20 Hill v. Lockhart, 474 U.S. 52, 58 (1985). 21 Id. at 58–59. 21 22 23 24 25 22 See, e.g., Beardslee v. Woodford, 327 F.3d 799, 807–08 (9th Cir. 2003) (internal citation omitted). 23 Id. 27 24 Hill, 474 U.S. at 59. 28 25 Id. at 60 (quoting Strickland, 466 U.S. at 695). 26 4 1 habitual-criminal treatment.26 And Anscott “received a substantial benefit in pleading guilty” 2 because the two charges of possessing a stolen vehicle were combined into one, and the State 3 stipulated that it would seek lesser habitual-criminal treatment unless he violated the plea 4 agreement. And, the Nevada Supreme Court added, Anscott failed to demonstrate that he would 5 not have agreed to the plea bargain—and accepted all of its benefits—but for his counsel’s 6 alleged errors.27 Anscott therefore failed to satisfy either of the Strickland prongs. So, ground 7 1(a) does not provide a basis for relief. 8 B. 9 Ground 1(b): Ineffective assistance of counsel—alleged exculpatory evidence In ground 1(b), Anscott alleges that he was denied effective assistance because his 10 counsel failed to investigate exculpatory evidence establishing that he had permission to use a 11 vehicle.28 Anscott was originally charged in count 1 with possession of a 2005 Nissan that had 12 been stolen from Jeanie Tatum, and in count 2 with possession of a 2004 Chinook motor home 13 that had been stolen from Darol Cline.29 Anscott pled guilty to a single count of possession of a 14 stolen vehicle by possessing the Nissan “and/or” the Chinook motor home.30 15 Prior to sentencing, Anscott moved for a new trial on a number of grounds, including 16 ineffective assistance of counsel and newly discovered evidence. Anscott presented a 17 purportedly notarized document stating that Dana Spalding gave him permission to use the 18 Chinook motor home in exchange for paying the rent for the mobile-home-park space and 19 allowing her access to the motor home at any time.31 The state district court denied the motion, 20 21 22 26 ECF No. 20-17 at 3–4. 27 Id. 28 ECF No. 11 at 6–8. 29 ECF Nos. 16-4, 16-11. 27 30 ECF Nos. 16-18, 16-19. 28 31 ECF No. 17-3. 23 24 25 26 5 1 and the Supreme Court of Nevada affirmed.32 2 On state post-conviction review, Anscott claimed that Morton was ineffective for failing 3 to investigate the purportedly notarized permission slip. The Nevada Supreme Court rejected the 4 claim, reasoning that Anscott had failed to demonstrate that counsel’s performance was deficient 5 or that he was prejudiced. Morton testified at the state-court evidentiary hearing that: (1) she 6 attempted to locate Dana Spalding prior to Anscott’s plea but was unable to find her;33 (2) 7 Spalding was not the owner of the motor home;34 (3) there was evidence that both vehicles were 8 “punched,” i.e., the ignitions had been pulled so that they could be started without a key;35 (4) the 9 police reports reflected that Anscott made excited utterances at the time of his arrest indicating 10 that he knew that the vehicle was stolen;36 (5) relying on Spalding’s testimony thus “would’ve 11 been a major problem at trial” even if she could have been located, and Morton explained that 12 issue to Anscott;37 (6) she received the Spalding document from a relative of Anscott after he had 13 been picked up on a bench warrant, which was after he failed to appear for sentencing;38 and (7) 14 after she provided the document to the prosecution, she “was alerted that there was a problem” 15 with the notary.39 16 17 In light of Morton’s testimony, Anscott failed to demonstrate that she did not investigate a potential witness and failed to demonstrate a reasonable probability that he would not have 18 32 ECF Nos. 17-15 at 5, 18-17. 33 ECF No. 19-14 at 20–21, 23–24. 21 34 Id. at 21–22. 22 35 Id. at 21, 25–26. 23 36 Id. at 21. 37 Id. at 22–24. 38 Id. at 20, 24. 19 20 24 25 26 27 28 39 Id. at 24. The State asserted at sentencing that the notary had no record of notarizing any document for Spalding and that her notary stamp and book had been stolen from a storage unit. ECF No. 17-19 at 7, 23. 6 1 pleaded guilty but for counsel’s alleged errors. And, “because the notarized document related 2 only to the use of the motor home and the charge related to two stolen vehicles, [Anscott] could 3 not demonstrate prejudice as he still would have been charged with possession of a stolen 4 vehicle.”40 So, the Nevada Supreme Court’s rejection of this claim was neither contrary to nor an 5 unreasonable application of clearly established federal law. 6 While satisfying Strickland’s high bar is “never an easy task,” federal habeas review of a 7 state court’s rejection of an ineffective-assistance claim is “doubly deferential” when reviewing 8 counsel’s performance under AEDPA.41 That is, the federal court must take a “highly 9 deferential” look at counsel’s performance through the also “highly deferential” lens of § 10 2254(d).42 “The question is whether there is any reasonable argument that counsel satisfied 11 Strickland’s deferential standard.”43 Strategic choices made after a reasonable investigation are 12 “virtually unchallengeable”; and a decision not to investigate further “must be directly assessed 13 for reasonableness in all of the circumstances, applying a heavy measure of deference to 14 counsel’s judgments.”44 15 There is a reasonable argument that Morton satisfied Strickland’s deferential standard. 16 She tried—but was unable—to locate Spalding before Anscott pled to the single possession-of-a- 17 stolen-vehicle charge. And she reasonably decided that the “notarized” letter would do more 18 harm than good. So, it was not unreasonable for the Nevada Supreme Court to conclude that 19 Anscott failed to demonstrate that Morton was deficient in representing him. The Court also held 20 that Anscott could not demonstrate prejudice. Anscott pled guilty to possession of a stolen 21 vehicle by possessing the 2005 Nissan “and/or” the 2004 Chinook motor home. Even if the 22 23 40 ECF No. 20-17 at 4. 41 Cullen, 563 U.S. at 190, 202. 42 Id. 27 43 Harrington v. Richter, 562 U.S. 86, 106 (2011) (emphasis added). 28 44 Strickland, 466 U.S. at 690–91. 24 25 26 7 1 notarized letter could have successfully challenged the charge with respect to the Chinook motor 2 home, it would do nothing to the charge with respect to the Nissan and would not change the 3 ultimate conviction. The Court’s holding that Anscott failed to satisfy either Strickland prong 4 was therefore not an unreasonable application of the law. Ground 1(b) does not provide a basis 5 for relief. 6 C. 7 Ground 1(c): Inffective assistance of trial counsel—communication In ground 1(c), Anscott alleges that he was denied effective assistance because Morton 8 failed to communicate with him while preparing a defense.45 The state district court denied the 9 claim because “Anscott [did] not explain how communicating with his trial counsel would have 10 resulted in a more favorable outcome. ‘Bare’ and ‘naked’ allegations are not sufficient, nor are 11 those belied and repelled by the record.”46 The Nevada Supreme Court did not explicitly address 12 this claim separate and apart from Anscott’s other claims, but its implicit rejection was neither 13 contrary to nor an unreasonable application of Strickland. The Nevada Supreme Court was only 14 required to give this claim as much attention as Anscott did, and because Anscott did not even 15 attempt to satisfy Strickland, it was not unreasonable for the Nevada Supreme Court to 16 summarily reject the claim. This claim—without any facts to support it—does not establish a 17 viable basis for habeas relief. 18 D. 19 Ground 2(a): Ineffective assistance of appellate counsel In the exhausted portion of ground 2(a), Anscott alleges that his appellate counsel was 20 ineffective because counsel failed to file a copy of the plea canvass and therefore failed to 21 adequately support Anscott’s claims on direct appeal.47 The Nevada Supreme Court rejected this 22 claim because Anscott “failed to demonstrate prejudice, as he [did] not identify the issues that 23 appellate counsel should have raised and did not explain how any issues would have been 24 25 45 ECF No. 11 at 9. 27 46 ECF No. 20-1 at 6 (citing to Hargrove v. State, 686 P.2d 222, 224 (Nev. 1984)). 28 47 ECF No. 11 at 13. 26 8 1 successful had appellate counsel provided transcripts on appeal.”48 2 The Court’s rejection of the bare and unsupported claim presented on post-conviction 3 appeal was neither contrary to, nor an unreasonable application of, clearly established federal 4 law. Federal court review is limited to the record before the state court that adjudicated the claim 5 on the merits.49 The state court’s determination that Anscott failed to demonstrate prejudice on 6 the record before it was not an unreasonable application of Strickland. Ground 2(a) does not 7 provide a basis for relief. 8 Conclusion 9 Accordingly, IT IS HEREBY ORDERED that Anscott’s petition for a writ of habeas 10 corpus [ECF No. 11] is DENIED on its merits, and this action is DISMISSED with prejudice. 11 Because reasonable jurists would not find my decision to be debatable or wrong, I decline to 12 issue a certificate of appealability. The Clerk of Court is directed to ENTER JUDGMENT in 13 favor of respondents and against Anscott, DISMISS this action with prejudice, and CLOSE 14 THIS CASE. 15 DATED: March 8, 2018. 16 _______________________________ U.S. District Judge Jennifer A. Dorsey 17 18 19 20 21 22 23 24 25 48 26 27 28 ECF No. 20-17 at 4–5 (citing Kirksey v. State, 923 P.2d 1102, 1114 (Nev. 1987) (“It is appellant’s responsibility to present relevant authority and cogent argument; issues not so presented need not be addressed by this court.”)). 49 Cullen, 563 U.S. at 182. 9

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