Tatum v. Neven et al

Filing 37

ORDER. IT IS ORDERED that 7 the petition is DENIED with prejudice in its entirety. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that the Clerk shall enter judgment and close this case. Signed by Judge James C. Mahan on 3/26/2018. (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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SYLVESTER SANFORD TATUM,

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Case No. 2:14-cv-01280-JCM-GWF

Petitioner,

ORDER

v.
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D.W. NEVEN, et al.,
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Respondents.
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This pro se 28 U.S.C. § 2254 habeas petition filed by Sylvester Sanford Tatum

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comes before the court for disposition on the merits (ECF No. 7).

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I.

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As this court has previously set forth in the order granting in part the motion to

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dismiss, on October 28, 2010, a jury convicted Tatum of one count of trafficking in a

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controlled substance and one count of possession of a controlled substance (exhibit 46

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to respondents’ motion to dismiss, ECF No. 10).1 The state district court sentenced

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Tatum to ten to twenty-five years for the trafficking count and twelve to thirty-two months

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for the possession count, to run concurrently. Id. Judgment of conviction was filed on

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November 1, 2010. Id. 2
The Nevada Supreme Court affirmed the convictions on October 5, 2011, and

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Procedural History and Background

remittitur issued on November 1, 2011. Exhs. 65, 67, 68. The Nevada Supreme Court

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Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 10, and are found
at ECF Nos. 11-17.
2 An amended judgment of conviction entered on August 15, 2012, corrected a clerical error to reflect that
Tatum was convicted pursuant to a jury trial and not a guilty plea. Exh. 83.
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affirmed the state district court’s denial of Tatum’s first state postconviction petition on
June 12, 2014, and remitittur issued on July 9, 2014. Exhs. 77, 108, 124, 135, 136.
The state district court denied Tatum’s second postconviction petition, and the Nevada
Court of Appeals affirmed the denial on February 24, 2015. Exhs. 132, 147, 160.
Tatum failed to indicate the date he dispatched his federal petition for mailing, but he
signed the petition on July 31, 2014 (ECF No. 7). Respondents now answer the
remaining claim, ground 2(B) (ECF No. 33). Tatum did not file a reply.
II.

Legal Standards & Analysis

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a. AEDPA Standard of Review
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty
Act (AEDPA), provides the legal standards for this court’s consideration of the petition in
this case:
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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The AEDPA “modified a federal habeas court’s role in reviewing state prisoner

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applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court

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convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

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685, 693-694 (2002). This court’s ability to grant a writ is limited to cases where “there is

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no possibility fair-minded jurists could disagree that the state court’s decision conflicts

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with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing
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the AEDPA 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”) (internal quotation marks and citations omitted).
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, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,
405-06 (2000), and citing Bell, 535 U.S. at 694.
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, 538
U.S. at 74 (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).
To the extent that the state court’s factual findings are challenged, the
“unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas
review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause
requires that the federal courts “must be particularly deferential” to state court factual
determinations. Id. The governing standard is not satisfied by a showing merely that the
state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires
substantially more deference:

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.... [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that we
would reverse in similar circumstances if this were an appeal from a
district court decision. Rather, we must be convinced that an appellate
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panel, applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the record.

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Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393
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F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be

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correct unless rebutted by clear and convincing evidence. The petitioner bears the

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burden of proving by a preponderance of the evidence that he is entitled to habeas

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relief. Cullen, 563 U.S. at 181.

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b. Ineffective Assistance of Counsel

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Ineffective assistance of counsel (IAC) claims are governed by the two-part test
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announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the

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Supreme Court held that a petitioner claiming ineffective assistance of counsel has the

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burden of demonstrating that (1) the attorney made errors so serious that he or she was

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not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the

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deficient performance prejudiced the defense. Williams, 529 U.S. at 390-91 (citing
Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that

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counsel’s representation fell below an objective standard of reasonableness. Id. To
establish prejudice, the defendant must show that there is a reasonable probability that,

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but for counsel’s unprofessional errors, the result of the proceeding would have been

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different. Id. A reasonable probability is “probability sufficient to undermine confidence in

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the outcome.” Id. Additionally, any review of the attorney’s performance must be “highly

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deferential” and must adopt counsel’s perspective at the time of the challenged conduct,

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in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the
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petitioner’s burden to overcome the presumption that counsel’s actions might be
considered sound trial strategy. Id.
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Ineffective assistance of counsel under Strickland requires a showing of deficient
performance of counsel resulting in prejudice, “with performance being measured
against an objective standard of reasonableness, . . . under prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations

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omitted). When the ineffective assistance of counsel claim is based on a challenge to a

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guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that

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there is a reasonable probability that, but for counsel’s errors, he would not have

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pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

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59 (1985).
If the state court has already rejected an ineffective assistance claim, a federal

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habeas court may only grant relief if that decision was contrary to, or an unreasonable
application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

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There is a strong presumption that counsel’s conduct falls within the wide range of

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reasonable professional assistance. Id.

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The United States Supreme Court has described federal review of a state supreme

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court’s decision on a claim of ineffective assistance of counsel as “doubly deferential.”

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Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

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The Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s

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performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403 (internal

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citations omitted). Moreover, federal habeas review of an ineffective assistance of

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counsel claim is limited to the record before the state court that adjudicated the claim on

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the merits. Cullen, 563 U.S. at 181-84. The United States Supreme Court has

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specifically reaffirmed the extensive deference owed to a state court's decision

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regarding claims of ineffective assistance of counsel:
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Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” id. at
689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review
is “doubly” so, Knowles, 556 U.S. at 123. The Strickland standard is a
general one, so the range of reasonable applications is substantial. 556
U.S. at 124. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is whether there is
any reasonable argument that counsel satisfied Strickland's deferential
standard.

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Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of

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counsel must apply a ‘strong presumption’ that counsel’s representation was within the

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‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466

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U.S. at 689). “The question is whether an attorney’s representation amounted to

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incompetence under prevailing professional norms, not whether it deviated from best

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practices or most common custom.” Id. (internal quotations and citations omitted).

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Ground 2(B)

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Tatum contends that his Sixth and Fourteenth Amendment rights to effective

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assistance of counsel were violated (ECF No. 7, pp. 39-42). He asserts that trial

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counsel failed to communicate to him a plea offer that the State extended before trial

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and that appellate counsel failed to raise the issue on appeal.

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In Frye v. Missouri, 566 U.S. 134, 147-148 (2012), the Supreme Court held that,

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generally, defense counsel has a duty to communicate formal plea offers from the State

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“on terms and conditions that may be favorable to the accused.” To show prejudice, a

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defendant must demonstrate a reasonable probability that he would have accepted the

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plea had he been afforded effective assistance of counsel and that “the end result of the

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criminal process would have been more favorable by reason of a plea to a lesser

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charge or a sentence of less prison time” (i.e., defendant must show a reasonable

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probability that the State would not have withdrawn the offer and that the trial court

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would not have refused to accept it). Id. See also Lafler v. Cooper, 566 U.S. 156, 164

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(2012).
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The state district court conducted an evidentiary hearing on the state postconviction
petition that was limited to this one issue. Exh. 94. Tatum’s defense counsel, Kirk
Kennedy, testified as follows. Id. at 4-29. Kennedy had some conversations with the
district attorney, David Schubert, but he could not recall a specific, written offer for a
low-level trafficking deal, nor did he find one when he looked back through his file. At
some point during trial, he had an exchange with Schubert and Schubert mentioned
something like well you should have taken the 1 to 6 years that I offered. Kennedy was
speaking with Tatum and referenced Schubert’s comment to Tatum. Tatum grew upset
and seemed to have been unaware of the offer; he said he would have taken the offer.
Kennedy did not recall clearly but there may have been an offer just before trial. He did
not recall relaying any offer to Tatum just before trial and stated that Tatum was “very
firm” about wanting to go to trial. Kennedy recalled some offers to plead to high-level
and mid-level drug trafficking charges and recalled that Tatum was not interested in
those. Kennedy could not recall an offer to plead to a low-level charge. In response to
questioning by the court, Kennedy testified that he had no independent recollection that
the State proffered a low-level trafficking plea offer. Id. at 21.
Assistant district attorney Schubert had passed away prior to the evidentiary
hearing. Jay Raman, the assistant district attorney who tried the case with Schubert,
testified as follows. Id. at 30-40. Raman recalled a conversation between Schubert and
Kennedy on the eve of trial. At that time the State offered a deal in the mid or max-level
given the large of amount of drugs involved. In response to the offer Kennedy said that
Tatum did not want any deals. Raman became involved in the case closer to trial, and
no low-level offer was made once he was on the case. In his view they had a very
strong case, including based on Tatum’s calls from jail to his co-defendant telling him
where the drugs were in Tatum’s backyard and directing him to dig them up, and the
subsequent police search pursuant to a warrant of the backyard, which yielded about
two kilos of cocaine. Raman assessed before trial that a high-level trafficking conviction

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was likely, and he never would have made a low-level offer in the case. A conversation
occurred in court, probably at calendar call, in which Schubert and Kennedy confirmed
that Tatum would not take a “max on mid-level” offer, which would have been six to
fifteen years. To Raman’s recollection, Schubert never told him that he ever made a
low-level offer to Tatum. Raman stated that he thought he was always present when
Schubert and Kennedy spoke during trial breaks, and he never remembers anyone
talking about a low-level trafficking deal.
The state district court denied the postconviction petition, finding that Kennedy and
Raman were credible witnesses. Exh. 108, p. 4. At the close of argument, the court
stated that the evidentiary hearing made it clear that no low-level offer was made. Exh.
101, p. 5. The court observed: “whether or not a comment – a posturing comment
made by a prosecutor in the heat of trial, possibly even made for mind-game playing in
the middle of trial, is to now suddenly be taken as there was a formal offer made that
was not communicated, I just don’t see that we have any evidence of that.” Id. In its
written order, the court found: “[b]ased on counsels’ testimony, it does not appear that
the State ever made the plea offer Defendant alleges. As the plea offer did not exist,
Mr. Kennedy was not ineffective for failing to convey it.” Id.
In its order affirming the denial of the state postconviction petition, the Nevada
Supreme Court explained:

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The district court conducted an evidentiary hearing during which trial
counsel testified that he believed that the State offered a plea to a lowlevel trafficking offense shortly before trial, but counsel could not
specifically recall the offer. Counsel did not discuss the offer with Tatum at
the time of the offer. An assistant district attorney testified that he did not
recall such an offer being made shortly before trial. Based on the
testimony, the district court found that the State never made the alleged
offer. The district court's factual findings are supported by substantial
evidence. Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994)
(affording deference to district court's factual findings that are supported
by substantial evidence). Tatum failed to meet his burden of
demonstrating that counsel received an offer from the State that he failed
to convey to Tatum. Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25,
33 (2004) (requiring proponent of ineffective assistance of counsel claim
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prove allegations by a preponderance of the evidence); see Missouri v.
Frye, 566 U.S. _, _, 132 S. Ct. 1399, 1409 (2012) (to demonstrate
ineffective assistance of counsel from failure to communicate plea offer,
proponent must show counsel failed to communicate offer and that client
would have accepted offer).

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Exh. 135, p. 3. The Nevada Supreme Court also pointed out that the claim that
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appellate counsel was ineffective for failing to raise this trial IAC claim lacked merit

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because the state supreme court normally declines to consider IAC claims on direct

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appeal. Id. at 2.

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Tatum did not file a reply in support of his petition. Appellate counsel does not
have a constitutional obligation even to raise every nonfrivolous issue, Jones v. Barnes,
463 U.S. 745, 751 (1983), and appellate counsel certainly has no constitutional

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obligation to raise a trial IAC claim on direct appeal to a state supreme court that
generally does not entertain such claims on direct appeal. With respect to Tatum’s trial

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IAC claim, he certainly has not presented anything to rebut the presumption that the

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state court’s factual determinations were correct. 28 U.S.C. § 2254(e)(1). He has not

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demonstrated that the Nevada Supreme Court’s decision was contrary to, or involved

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an unreasonable application of, federal law established by the United States Supreme
Court. 28 U.S.C. § 2254(d). Accordingly, federal habeas relief as to ground 2(B) is

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denied. The petition, therefore, is denied in its entirety.

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III.

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This is a final order adverse to the petitioner. As such, 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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Certificate of Appealability

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 "has
made a substantial showing of the denial of a constitutional right." With respect to
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 Tatum’s petition, the
court finds that none of those rulings meets the Slack standard. The court therefore

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declines to issue a certificate of appealability for its resolution of any of Tatum’s claims.
IV.

Conclusion

IT IS THEREFORE ORDERED that the petition (ECF No. 7) is DENIED with
prejudice in its entirety.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment and close this case.

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March 26, 2018.
DATED: 23 March 2018.

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JAMES C. MAHAN
UNITED STATES DISTRICT JUDGE

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