Decarolis v. Williams, et al.,

Filing 52

ORDER that the 17 Amended Petition is DENIED with prejudice in its entirety. FURTHER ORDERED that a certificate of appealability is DENIED. Petitioner's 50 Fourth Motion for Appointment of Counsel and 51 Motion to Amend is DENIED.The Clerk shall enter judgment and close this case. Signed by Judge Kent J. Dawson on 3/29/2018. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PATRICK PHILIP DECAROLIS,

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Case No. 2:14-cv-01379-KJD-PAL
Petitioner,

ORDER

v.
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BRIAN WILLIAMS, et al.,
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Respondents.
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This pro se 28 U.S.C. § 2254 first-amended habeas petition filed by Patrick Philip

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DeCarolis comes before the court for disposition on the merits (ECF No. 17).

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I.

Procedural History and Background

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

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dismiss certain claims, on December 2, 2010, a jury found DeCarolis guilty of count 1:

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burglary; count 2: forgery; and count 3: attempted theft (exhibit 28 to motion to dismiss,

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ECF No. 21). 1 On January 4, 2012, following trial but prior to sentencing, DeCarolis

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moved to dismiss his trial counsel for providing ineffective assistance. Exhs. 40, 41.

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The state district court appointed new counsel for the limited purpose of reviewing

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DeCarolis’ motion to dismiss his trial counsel. Exh. 43. On February 27, 2012, the

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district court re-appointed DeCarolis’ trial counsel to represent DeCarolis at sentencing.

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Exh. 45.

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Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 21, and are found
at ECF Nos. 22-25.

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On March 21, 2012, the state district court sentenced DeCarolis, pursuant to
Nevada’s small habitual criminal statute, to a term of 96 to 240 months for each of the
three counts, to run concurrently. Exh. 46, p. 23; see NRS 207.010. Judgment of
conviction was filed on April 5, 2012. Exh. 55. The Nevada Supreme Court affirmed
the convictions on February 13, 2013, and remittitur issued on March 11, 2013. Exhs.
82, 83.
On September 26, 2013, DeCarolis filed a state postconviction habeas corpus
petition. Exh. 87. The Nevada Supreme Court affirmed the denial of the petition on
July 23, 2014, and remittitur issued on August 20, 2014. Exhs. 118, 119.
DeCarolis dispatched his federal petition for mailing on August 20, 2014 (ECF No.
11). On or about May 6, 2015, DeCarolis filed his first-amended petition (ECF No. 17).
Respondents have now answered the remaining grounds (ECF No. 43), and
petitioner has replied (ECF No. 44).
II.

Legal Standards

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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.
The AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
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685, 693-694 (2002). This court’s ability to grant a writ is limited to cases where “there is
no possibility fair-minded jurists could disagree that the state court’s decision conflicts
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
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

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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
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
relief. Cullen, 563 U.S. at 181.
b. Ineffective Assistance of Counsel
DeCarolis sets forth several claims of ineffective assistance of trial and appellate
counsel in violation of his Sixth and Fourteenth Amendment rights. Ineffective
assistance of counsel (IAC) claims are governed by the two-part test announced in

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Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held
that a petitioner claiming ineffective assistance of counsel has the burden of

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demonstrating that (1) the attorney made errors so serious that he or she was not

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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

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Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness. Id. To

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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

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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

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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).
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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

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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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As discussed below, DeCarolis has failed to show that the Nevada Supreme Court’s

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decision on any of his IAC claims was contrary to or involved an unreasonable

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application of Strickland. 28 U.S.C. § 2254(d).

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III.

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DeCarolis claims several instances of ineffective assistance of trial and appellate

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Instant Petition

counsel. Trial transcripts reflect the following. Walmart employee Nicole Moran
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testified that DeCarolis came into the Walmart money center and presented a payroll
check from The Cool Art Company payable to Patric DeCarolis to cash, along with a
payroll stub and an expired driver’s license that appeared to have been altered to read
“Patric DeCarolis” instead of “Patrick DeCarolis.” Exh. 23, pp. 121-138. She stated that
she immediately believed the check was fake so she advised her manager who, after
unsuccessfully trying to verify that The Cool Art Company existed, called asset
protection officer Steve Melton. Moran testified that she engaged DeCarolis in
conversation in order to stall him, and DeCarolis told her that The Cool Art Company
was his business. Id.
Steve Melton testified that he approached DeCarolis and told him he needed to talk
to him about a fraudulent check. Id. at 154-176. DeCarolis accompanied him to his
office. Melton called the police. Without any prompting, DeCarolis told him that he
knew the check was fake and was getting a percentage. Melton stated: “He just told us
everything about the entire check and who made them, about his car being outside, a
female outside in the vehicle. He gave us the make, the model, the license plate, and
just said he was getting a percentage of the check.” Id. at 161. On cross-examination,
Melton acknowledged that he did not include any of these statements that DeCarolis
allegedly made in his voluntary statement to police or in his asset protection case
record. Defense counsel also elicited that Melton thought DeCarolis smelled of alcohol
and had blood shot eyes. Melton testified that DeCarolis showed no other signs of
being intoxicated, yet when Melton called the police he described DeCarolis as “highly
intoxicated.”
Las Vegas Metropolitan Police Department Officer Zachary Ivins testified that he
arrived at WalMart, read DeCarolis his Miranda warnings, and then began to question
the handcuffed DeCarolis. Id. at 176-200. Ivins stated that initially DeCarolis said he
was just trying to cash his work check, but then he said he was there to cash a check
that he had received from an acquaintance named Tammy; he knew the check was

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fraudulent, and he was to get a percentage of the proceeds. Ivins testified that he
observed no signs that DeCarolis was intoxicated. On cross-examination, Ivins stated
that there was no video or audio recording of the interview.
Alan Ruvin testified that he owns The Cool Art Company in Las Vegas and that
Patrick DeCarolis was never an employee of the company nor did Ruvin know
DeCarolis. Exh. 25, pp. 4-15.
Ground 3A
DeCarolis claims that trial counsel failed to properly explain a plea agreement to
DeCarolis, told petitioner to sign the agreement without reading it and refused to
negotiate anything other than burglary (ECF No. 17, pp. 18-19).
Each charge that DeCarolis faced was eligible for sentencing under Nevada’s large
habitual offender statute. Exhs. 10, 14. At a hearing on May 18, 2010, with DeCarolis
present, his counsel informed the court that the parties had reached a deal for a
stipulated sentence of 12 to 36 months. Exh. 10. DeCarolis initially indicated to the
court that he wished to plead guilty. However, when the court asked DeCarolis if he
understood that the court was not bound by counsels’ stipulation and could sentence
him to 1 to 10 years, DeCarolis seemed confused. Id. The court continued the hearing.
Id. On May 20, 2010, the parties appeared before the court, and DeCarolis entered a
plea of not guilty. Exh. 13.
The state district court denied this claim in his state postconviction petition. The
court recounted the facts from the arraignment hearing set forth above, and found

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Defendant claims counsel was ineffective because he attempted to trick
Defendant into entering into a guilty plea agreement. However, the record
belies this assertion....
By Defendant’s own admission, counsel
communicated this deal [12 to 36 months] to Defendant and informed
Defendant it was in his best interest to accept the plea agreement. Then
during the plea canvass on May 18, 2010, Defendant appeared equivocal
regarding entering into his plea so the court re-set the hearing for May 20,
2010, to give Defendant more time to go over the agreement with his
counsel and thereby ensure Defendant actually wanted to enter into the
plea. Following the continuance, Defendant decided to reject the State's
offer and enter a plea of not guilty on May 20, 2010. Defendant retained the
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ultimate responsibility for accepting the plea deal, and he chose not to do
so in this case. As counsel communicated the plea offer to Defendant and
Defendant chose to reject the plea, counsel was not ineffective in any way
and this claim is hereby denied.
Exh. 101, p. 5. The Nevada Supreme Court affirmed the denial of this claim,
concluding that DeCarolis failed to demonstrate that counsel was deficient or that he
was prejudiced. Exh. 118, p. 3. The state supreme court reasoned:
The plea offer was communicated to appellant, and there was no
allegation that trial counsel told him to refuse the plea agreement.
Therefore, Missouri v. Frye, 566 U.S. 132 S. Ct. 1399 (2012) and Lafler v.
Cooper,566 U.S. --, 132 S. Ct 1376(2012), do not apply. Further, it appears
from his petition that appellant rejected the plea agreement because he
wanted more favorable terms. Accordingly, the district court did not err in
denying this claim.

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Id. DeCarolis has not demonstrated that the Nevada Supreme Court’s decision
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was contrary to or involved an unreasonable application of Strickland. 28 U.S.C. §
2254(d). Accordingly, federal habeas relief as to ground 3A is denied.

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Ground 3B

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DeCarolis argues that trial counsel failed to correct mistakes in the presentence

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investigation report (PSI), including that it listed aliases that petitioner did not use and
mischaracterized portions of his criminal history (ECF No. 17, pp. 22-23).

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At sentencing, trial counsel informed the court that one judgment of conviction
should not be considered for the purpose of habitual criminal because it was a gross

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misdemeanor. Exh. 46, p. 6. The state agreed. Id. Counsel for DeCarolis also argued

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that the PSI states that DeCarolis had been incarcerated six times, but that that is

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deceptive because it was six sentences, but three physical trips to prison. Id. at 17.

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The state district court denied this claim in the postconviction petition as belied

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by the record. Exh. 101, pp. 5-6. The Nevada Supreme Court affirmed the denial of this
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claim, stating that trial counsel informed the district court at sentencing that the report
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contained an error regarding the number of prior incarcerations. Exh. 118, p. 6. The

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state supreme court also explained that DeCarolis failed to demonstrate a reasonable

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probability of a different outcome had trial counsel informed the court of other allegedly

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incorrect information in the PSI. Id.
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DeCarolis has failed to demonstrate that the Nevada Supreme Court’s decision

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was contrary to or involved an unreasonable application of Strickland. 28 U.S.C. §

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2254(d). Accordingly, ground 3B is denied.

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Ground 3C
DeCarolis contends that counsel failed to provide him with a copy of discovery,
did not provide him with “fraudulent information filed by police,” and did not tell

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DeCarolis about his own confession that he knew the check was fake (ECF No. 17, pp.
24-25).
Counsel for DeCarolis filed a motion to suppress his statements to police as not

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voluntary and knowing because DeCarolis was intoxicated. Exh. 17. DeCarolis was

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present when the court conducted a pretrial evidentiary hearing and denied the motion.

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Exh. 23, pp. 41-44.

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The state district court rejected this claim in the postconviction petition as a bare
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assertion with no factual support, stating: “Defendant essentially re-alleges his meritless

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claim that the ‘police, DA, and public defender’s office’ were all conspiring against him

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and made up false information in this case” Exh. 101, p. 6. The Nevada Supreme Court

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affirmed, concluding that DeCarolis failed to demonstrate prejudice because he failed to

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demonstrate a reasonable probability of a different outcome at trial if counsel had

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provided discovery to or discussed it with DeCarolis. Exh. 118, p. 3.

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DeCarolis has not shown that the Nevada Supreme Court’s decision was

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contrary to or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d).

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Ground 3C is denied.

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Ground 3D
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DeCarolis sets forth several claims in ground 3D. First, he asserts that counsel

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failed to object to the conduct of the court that denied him the right to a fair trial (ECF

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No. 17, pp. 27-31). Apparently, what DeCarolis mainly objects to was the State’s use of

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“thought bubbles” over his head in what he claims was altered digital security video but

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was actually the State’s Power Point presentation during its closing arguments. Exh.
25, pp. 65-78. Witnesses testified at trial that no security video or audio or video

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recording of any type existed. Exh. 23, pp. 190-191.
The state district court found that this was a “permissible demonstrative tool for

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the State to use” and that counsel had no basis to object. Exh. 101, pp. 6-7. Also

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rejecting this claim, the Nevada Supreme Court stated that DeCarolis failed to

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demonstrate deficiency or prejudice because there was no security video presented at

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trial. Exh. 118, p. 4. The state supreme court observed that DeCarolis appeared to

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object the Power Point, but failed to demonstrate that it was inappropriate, and that
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counsel is not deficient for failing to make futile objections. Id.

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DeCarolis also argues that counsel failed to attempt to show reasonable doubt

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and offered a “lame excuse of a defense” (ECF No. 17, p. 28). He claims he does not

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drink, and he disagreed with counsel’s proffered defense that he was intoxicated and

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thus did not knowingly and voluntarily confess and/or was not aware he possessed a

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fraudulent check. He asserts that counsel “never objected to anything,” including to

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photocopy evidence (ECF No. 17, p. 31).
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Denying this claim in the postconviction petition, the state district court stated that it
is up to counsel, not the defendant, to determine what defenses to develop, and that
DeCarolis’ disagreement with this defense strategy did not rise to a conflict of interest.
Exh. 101, p. 7. The court pointed out that defense counsel lodged several objections
during trial (see exh. 23, pp. 185-186 -- counsel objected to testimony about DeCarolis’
expired driver’s license; exh. 25, pp. 13, 22-23, 31 – counsel objected to repetitive
testimony and to two jury instructions). The court also noted that the photocopy of two
different I.D. cards –an altered I.D. that DeCarolis presented when he attempted to cash
the forged check and the second which was his actual I.D.—were introduced through
the Walmart employees to whom DeCarolis presented the I.D.’s and that there would
have been no legal grounds to object to the exhibit’s admission. Id. at 8.
The Nevada Supreme Court observed that “because appellant confessed to the
police that he knowingly tried to cash a forged check,” counsel presented a defense that
DeCarolis was drunk rather than try to argue a lack of proof. Exh. 118, p. 4. The state
supreme court concluded that this was a reasonable trial strategy and further pointed
out that defense counsel also called David Kramer who testified that he introduced
DeCarolis to a woman who owned a graphics company and intimated that the check
was payment for working on the woman’s car. Id.; exh. 25, pp. 33-47
DeCarolis also argues that counsel should have interviewed or deposed the Walmart
witnesses (ECF No. 17, p. 29). The state district court found DeCarolis “utterly fail[ed]”
to prove how such interviews/depositions would have resulted in a more favorable
outcome of his case and that nothing in the record indicated that such
interviews/depositions would have led to a better outcome at trial. Exh. 101, p. 10.
The Nevada Supreme Court determined that DeCarolis failed to demonstrate
deficiency or prejudice because he failed to demonstrate that interviewing or deposing
the employees would have produced any exculpatory evidence because the employees
testified at trial. Exh. 118, pp. 2-3.

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DeCarolis has not shown that the Nevada Supreme Court’s decision on any of these
claims was contrary to or involved an unreasonable application of Strickland. 28 U.S.C.
§ 2254(d). Thus, ground 3D is denied.
Ground 3E
DeCarolis claims that counsel failed to consult with, hire, and call expert witnesses
regarding the digital security video that captured his interactions with Walmart
employees (ECF No. 17, p. 32). The Nevada Supreme Court affirmed the denial of this
claim, noting, “there was no security video of the offenses.” Exh. 118, pp. 4-5; see also
exh. 23, pp. 190-91. As no security footage existed, trial counsel simply could not
consult, hire, or call an expert witness to discuss the non-existent footage. Id. Ground
3E is denied as patently meritless.
Ground 3G
DeCarolis argues that counsel failed to put on a viable defense of reasonable doubt,
including ignoring information and a witness list that DeCarolis provided to him (ECF
No. 43, pp. 35-36). However, per DeCarolis, counsel located and called David Kramer
as a witness. Kramer testified that he had known DeCarolis about ten years and that
DeCarolis worked fixing vehicles. Exh. 25, pp. 33-47. He also testified that he
introduced DeCarolis to a woman named Terry who owned a graphics company so that
DeCarolis could do some work on the woman’s car.
Respondents point out that trial counsel directly attacked the element of intent of
DeCarolis’ charges. Exh. 25, pp.81-82, 84. Counsel argued DeCarolis did not have the
training or experience to spot a fake check. Id. at 82. Additionally, counsel argued that
DeCarolis cashed the check as payment for a mechanic job. Id. at 88-89.
The state district court found that this claim was belied by the record. Exh. 101, p. 9.
The state supreme court agreed and pointed to Kramer’s testimony. Exh. 118, p. 4.

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DeCarolis has not shown that the Nevada Supreme Court’s decision was contrary to
or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d). Federal
habeas relief as to ground 3G is denied.
Ground 3I
DeCarolis asserts that trial counsel failed to file DeCarolis’ pro se motion to preserve
“audio, video, and whatever else was used at trial” (ECF No. 17, p. 41). The Nevada
Supreme Court affirmed the denial of this claim, again because there was no security
video. Exh. 118, p. 6. Respondents further point out that DeCarolis attempted to file
this motion after the jury found him guilty and that he has failed to show how the
absence of a motion to preserve evidence, including non-existent evidence, prejudiced
him in any way (ECF No. 43, p. 13). Ground 3I is meritless.
Grounds 3J and 3L
DeCarolis claims that trial counsel failed to argue at sentencing that all but one of his
felony arrests were over ten years old and that he had no violent felony convictions (3J).
He also argues that counsel failed to prepare for sentencing, present mitigation
evidence, or seek a lesser sentence (ECF No. 17, pp. 42, 45).
At sentencing counsel for DeCarolis raised the issue that, while the PSI reflected six
prior incarcerations, that was deceptive because it was only three physical trips to
prison. Exh. 46, p. 17-23. He emphasized that this was a nonviolent crime. He also
noted that Kramer testified that DeCarolis was going to repair a woman’s car and
argued that DeCarolis understood that the check was his payment for that work.
Counsel confirmed that DeCarolis cares for his twins with Down Syndrome and also has
two other daughters (DeCarolis had discussed his family’s needs when he addressed
the court). He also emphasized that there was a large gap between DeCarolis’ prior
convictions and this case. Counsel argued that DeCarolis should be sentenced to
“some” time in county detention, then probation with a 4 to 10-year suspended
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The state district court concluded that counsel cannot be deemed ineffective for
failing to make futile arguments. Exh. 101, pp. 10-11, 12. The court noted that the
habitual criminal statute used at sentencing did not limit the use of felonies that are
more than ten years old and that DeCarolis’ claims that counsel failed to prepare,
present mitigation evidence, or seek a lesser sentence are belied by the record. The
Nevada Supreme Court agreed that these claims are belied by the record; two prior
felonies were required to qualify for the small habitual enhancement, and DeCarolis had
seven prior felonies. Exh. 118, p. 6. The state supreme court also observed that
DeCarolis made a lengthy statement at sentencing, including about his family and his
history of drug use, and concluded that DeCarolis failed to demonstrate further
mitigation evidence was available or that it would have had a reasonable probability of
changing the outcome at sentencing. Id.
DeCarolis has failed to demonstrate that the Nevada Supreme Court’s decision on
these claims was contrary to or involved an unreasonable application of Strickland. 28
U.S.C. § 2254(d). Federal habeas relief as to grounds 3J and 3L is denied.
Ground 3K
DeCarolis contends that counsel failed to call him or “Marina Valdez, Kathy Hoffman,
or Leatrice Medall” to testify on his behalf (ECF No. 17, p. 43). He argues that he could
have testified as to what really happened and that the other witnesses would have
testified that he was going to pick up a Jeep for repairs and had always fixed vehicles to
make money. Id.
The Sixth Amendment “grants to the accused personally the right to make his
defense.” Faretta v. California, 422 U.S. 806, 819 (1975). This includes the right to
testify. Harris v. New York, 401 U.S. 222, 225 (1971). “Waiver of the right to testify may
be inferred from the defendant’s conduct and is presumed from the defendant’s failure
to testify or notify the court of his desire to do so.” U.S. v. Joelson, 7 F.3d 174, 177 (9th
Cir. 1993).

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First, the state district court canvassed DeCarolis twice about his right to testify,
including answering several questions that DeCarolis had about this right. Exh. 23, p.
202-203; exh. 25, pp. 16-20. When the court subsequently asked him if he wished to
testify, he stated “Your Honor, no, I’m not going to take the stand.” Exh. 25, p. 28.
Second, as discussed, defense witness David Kramer testified that he had known
DeCarolis about ten years and that DeCarolis worked fixing vehicles. Exh. 25, pp. 3347. He also testified that he introduced DeCarolis to a woman who owned a graphics
company in order that DeCarolis could do some work on the woman’s car. Thus,
respondents argue that the proposed testimony of the other three witnesses appears
largely cumulative (ECF No. 43, p. 14).
The Nevada Supreme Court concluded that DeCarolis failed to demonstrate
deficiency and prejudice, pointing the district court’s canvass, in which the court advised
DeCarolis that the decision whether to exercise his right to testify was his alone. Exh.
118, p. 5. The state supreme court also reasoned that DeCarolis failed to demonstrate
that there was further evidence to be introduced through the other witnesses and or that
any further evidence would have created a reasonable probability of a different outcome
at trial. Id. at 3.
DeCarolis has failed to demonstrate that the Nevada Supreme Court’s decision
involved an unreasonable determination of fact or was contrary to or an unreasonable
application of Strickland. 28 U.S.C. § 2254(d)(1) & (2). Federal habeas relief is denied
as to ground 3K.
Ground 4A
DeCarolis claims that appellate counsel failed to consult with him regarding the
issues to be raised/omitted on appeal (ECF No. 17, p. 47). Respondents point out that
DeCarolis does not specify what claims counsel failed to raise (ECF No. 43, p. 15).
The Nevada Supreme Court observed that appellate counsel does not have a
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751 (1983). Exh. 118, p. 7. The state supreme court concluded that DeCarolis failed to
demonstrate deficiency and prejudice, or that any issue that was not raised had a
reasonable likelihood of success on appeal.
Ground 4B
DeCarolis argues that appellate counsel failed to federalize all issues on appeal
(ECF No. 17, p. 50). Appellate counsel raised two claims: (1) a double jeopardy claim
that the crimes of burglary, forgery and attempted theft merge because one act
constituted the factual basis for all three crimes, citing the Fifth Amendment and
Blockburger v. United States, 284 U.S. 299 (1932); and (2) a claim that DeCarolis’
sentence violated the Eighth Amendment prohibition against cruel and unusual
punishment. Exh. 72, pp. 7-8, 13. Ground 4B, therefore, is utterly belied by the record.
Ground 4C
DeCarolis claims that appellate counsel failed to withdraw from his case, raised only
“lame issues” on appeal, and was under the influence of the district attorney (ECF No.
17, p. 51). The state district court denied this claim, finding it to be a bare allegation
with no factual support in the record. Exh. 101, p. 13.
DeCarolis filed a pro se motion to dismiss and replace appellate counsel after
counsel filed the fast track appeal. Exh. 81. The Nevada Supreme Court denied the
motion, explaining that “An appellant may not reject court-appointed counsel and
request substitute counsel at public expense absent a showing of adequate cause.
Thomas v. State, 94 Nev. 605, 607, 584 P.2d 674, 676 (1978). Appellant’s general loss
of confidence or trust in counsel alone is not adequate cause for the appointment of
new counsel.” Exh. 80. The Nevada Supreme Court held that DeCarolis failed to
demonstrate adequate cause for the appointment of new counsel. Id. In affirming the
denial of the state postconviction petition, the state supreme court reasoned that
DeCarolis failed to show any grounds that would cause objectively reasonable counsel
to file a motion to withdraw. Exh. 118, p. 8. The Nevada Supreme Court also held that

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DeCarolis failed to demonstrate a reasonable probability of success on appeal had
appellate counsel asked and been allowed to withdraw.
This court concludes that DeCarolis has failed to demonstrate that the Nevada
Supreme Court’s decision on any of these appellate IAC claims was contrary to or
involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d). Accordingly,
grounds 4A, 4B, and 4C are denied.
Grounds 5 & 6
Finally, DeCarolis argues that the cumulative effect of trial and appellate counsels’
ineffectiveness deprived him of his right to a fair trial (ECF No. 17, pp. 52, 54 – labeled
as grounds 3 and 4 in the petition). Generally, a separate cumulative error claim for
ineffective assistance of counsel is either noncognizable or duplicative of the underlying
ineffective assistance claims. In any event, DeCarolis has not demonstrated any errors
of counsel to cumulate.
In sum, DeCarolis has failed to demonstrate that the Nevada Supreme Court’s
decisions on any of his claims of trial and appellate IAC involved an unreasonable
determination of fact or were contrary to or an unreasonable application of Strickland.
28 U.S.C. § 2254(d)(1) & (2). Accordingly, the petition is denied in its entirety.
IV.

Certificate of Appealability

This is a final order adverse to the petitioner. As such, Rule 11 of the Rules
Governing Section 2254 Cases requires this court to issue or deny a certificate of
appealability (COA). Accordingly, the court has sua sponte evaluated the claims within
the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.
Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
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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wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
jurists could debate (1) whether the petition states a valid claim of the denial of a
constitutional right and (2) whether the court's procedural ruling was correct. Id.
Having reviewed its determinations and rulings in adjudicating DeCarolis’ petition,
the court finds that none of those rulings meets the Slack standard. The court therefore
declines to issue a certificate of appealability for its resolution of any of DeCarolis’
claims.
V.

Conclusion

IT IS THEREFORE ORDERED that the amended petition (ECF No. 17) is DENIED
with prejudice in its entirety.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
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IT IS FURTHER ORDERED that petitioner’s fourth motion for appointment of
counsel/motion to amend (docketed as ECF Nos. 50 and 51) is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment and close this case.

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DATED: 29 March 2018.

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KENT J. DAWSON
UNITED STATES DISTRICT JUDGE

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