Denson v. Neven et al

Filing 55

ORDER. IT IS ORDERED that 46 the petitioner's Second Amended Petitionfor Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED that the petitioner is denied a certificate of appealability. IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter judgment accordingly. Signed by Judge Andrew P. Gordon on 2/21/2019. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 RICHARD DENSON,

Case No.: 2:15-cv-1473-APG-PAL

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

Petitioner,

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v.

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JERRY HOWELL, et al.,
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Respondents.
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Petitioner Richard Denson is a Nevada prisoner convicted of burglary in Nevada’s Eighth

10 Judicial District Court, in Clark County, Nevada. He filed this pro se petition for writ of habeas
11 corpus. I will deny Denson’s petition.
12 I.

Background

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On June 1, 2009, Denson was charged by criminal complaint, in Clark County, Nevada

14 with conspiracy to commit larceny, burglary, grand larceny, possession of stolen property,
15 malicious destruction of property, and possession of burglary tools. See Criminal Complaint,
16 Exh. 1 (ECF No. 38-1, pp. 6-8). A preliminary hearing was held in a Las Vegas Justice Court on
17 August 10, 2009. See Transcript of Preliminary Hearing, Exh. 2 (ECF No. 38-2). Following the
18 preliminary hearing, Denson was bound over to the district court, and an information was filed
19 on August 14, 2009, charging him with the same six crimes. See Information, Exh. 3 (ECF No.
20 38-3). The Information included notice that the State would seek sentencing of Denson as a
21 habitual criminal pursuant to NRS 207.010. See id. at 5-6 (ECF No. 38-3, pp. 6-7).
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On July 23, 2010, Denson and the State entered into a plea agreement. Denson agreed to

23 plead guilty to one count of burglary in Case No. C257081 and one count of burglary in Case

1 No. C257359. The State agreed to dismiss the other charges in both cases, and to not pursue
2 other uncharged offenses. See Guilty Plea Agreement, Exh. 12 (ECF No. 38-12); Transcript of
3 Hearing, Exh. 13 (ECF No. 38-13). Denson stipulated to sentencing as a habitual criminal. See
4 Guilty Plea Agreement, Exh. 12 (ECF No. 38-12). An Amended Information, consistent with
5 the plea agreement, was filed the same day. See Amended Information, Exh. 11 (ECF No. 386 11).
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Denson’s sentencing was on October 4, 2010. See Transcript of Sentencing, Exh. 14

8 (ECF No. 38-14). He was sentenced, as a habitual criminal, to life in prison with the possibility
9 of parole after ten years. See Judgment of Conviction, Exh. 15 (ECF No. 38-15). The sentence
10 was made consecutive to his sentence in Case No. C257359, which was a prison sentence of 8 to
11 20 years. See id. The judgment of conviction was filed on October 7, 2010. See id.
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Denson initiated a state habeas action on September 26, 2011. See Petition for Writ of

13 Habeas Corpus (Post-Conviction), Exh. 16 (ECF No. 38-16); Addendum to Petition, Exh. 17
14 (ECF No. 39-1). Counsel was appointed for Denson, who filed a supplement to the petition. See
15 Transcript of Proceedings, February 3, 2012, Exh. 20 (ECF No. 39-4); Supplement to Petition,
16 Exh. 21 (ECF No. 39-5). The state court granted Denson an evidentiary hearing, which was held
17 on October 18, 2013. See Transcript of Proceedings, August 23, 2013, Exh. 23 (ECF No. 39-7);
18 Transcript of Proceedings, October 18, 2013, Exh. 24 (ECF No. 39-8). At the conclusion of the
19 evidentiary hearing, the court ruled that Denson could proceed with an appeal pursuant to
20 Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994), but denied Denson’s petition in all other
21 respects. See id. at 149 (ECF No. 39-8, p. 150). The state district court’s written order was filed
22 on July 11, 2014. See Findings of Fact, Conclusions of Law and Order, Exh. 25 (ECF No. 40-1).
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Denson filed a notice of appeal, initiating his Lozada appeal, on July 11, 2014. See

2 Notice of Appeal, Exh. 26 (ECF No. 40-2). The Nevada Court of Appeals affirmed the judgment
3 of conviction on July 14, 2015. See Order of Affirmance, Exh. 59 (ECF No. 41-22). The
4 remittitur issued on August 10, 2015. See Remittitur, Exh. 60 (ECF No. 41-23).
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Denson also appealed from the state district court’s judgment in his state habeas action,

6 and the Nevada Court of Appeals affirmed that judgment on July 14, 2015. See Order of
7 Affirmance, Exh. 30 (ECF No. 40-6). The court’s remittitur was issued on August 10, 2015. See
8 Remittitur, Exh. 31 (ECF No. 40-7).
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This Court received Denson’s petition for writ of habeas corpus initiating this action on

10 July 31, 2015. ECF No. 4. After the payment of the filing fee was resolved, the respondents filed
11 a motion for more definite statement on October 19, 2016 (ECF No. 22). I granted that motion
12 on January 26, 2017. ECF No. 24.
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Denson filed an amended habeas petition on May 25, 2017. ECF No. 29. On September

14 28, 2017, the respondents filed a motion to dismiss, contending that Denson’s amended petition
15 was still vague and that certain of Denson’s claims were unexhausted in state court. ECF No. 37.
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On February 16, 2018, Denson filed a motion for stay, in which he appeared to request a

17 stay of this action to exhaust claims in state court. ECF No. 43. On March 13, 2018, Denson
18 filed a second amended petition for writ of habeas corpus. ECF No. 46. In an order entered on
19 April 18, 2018, I construed Denson’s filing of the second amended petition as a motion for leave
20 to amend, and granted the motion, allowing the filing of Denson’s second amended petition. I
21 denied as moot the respondents’ motion to dismiss the first amended petition, and I denied
22 Denson’s motion for stay. ECF No. 47.
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Denson’s second amended habeas petition – now the operative petition – includes the

2 following claims:
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Ground 1 - Denson’s federal constitutional rights were violated as a result of
ineffective assistance of his trial counsel.

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A - Trial counsel “failed to review information relative to sentencing.”
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B - Trial counsel “failed to provide mitigation in support of concurrent
sentences.”

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C - Trial counsel “failed to submit both errors and findings to the court in
the presentence investigation report (PSI) and failed to expose the
judgment of convictions (JOC) to investigations.

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Ground 2 - Denson’s federal constitutional rights were violated because of the
imposition of consecutive sentences.

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11 ECF No. 46, pp. 3-5.
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On July 9, 2018, Respondents filed a motion to dismiss, contending that Ground 2 of

13 Denson’s second amended habeas petition is barred by the statute of limitations. ECF No. 48.
14 On September 14, 2018, I granted that motion and dismissed Ground 2. ECF No. 49. The
15 respondents filed an answer responding to the remaining claims in Denson’s second amended
16 habeas petition on November 7, 2018. ECF No. 50. Denson did not file a reply.
17 II.

Discussion

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A.

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28 U.S.C. § 2254(d) sets forth the standard of review applicable in this case under the

Standard of Review

20 Antiterrorism and Effective Death Penalty Act (AEDPA):
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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 --

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(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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28 U.S.C. § 2254(d).
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A state court decision is contrary to clearly established Supreme Court precedent within
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the meaning of 28 U.S.C. § 2254 “if the state court applies a rule that contradicts the governing
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law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are
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materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a
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result different from [the Supreme Court’s] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73
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(2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535
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U.S. 685, 694 (2002)).
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A state court decision is an unreasonable application of clearly established Supreme
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Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the
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correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies
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that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. at 75 (quoting Williams, 529
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U.S. at 413). The “unreasonable application” clause requires the state court decision to be more
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than incorrect or erroneous; the state court’s application of clearly established law must be
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objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
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“A state court’s determination that a claim lacks merit precludes federal habeas relief so
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long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
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Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652,
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664 (2004)). The Supreme Court has stated “that even a strong case for relief does not mean the
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state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75);
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1 see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing standard as “a difficult to
2 meet” and “highly deferential standard for evaluating state-court rulings, which demands that
3 state-court decisions be given the benefit of the doubt” (internal quotation marks and citations
4 omitted)).
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B.

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In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two

Ineffective Assistance of Counsel – Legal Standard

7 prong test for analysis of claims of ineffective assistance of counsel: the petitioner must
8 demonstrate (1) that the attorney’s representation “fell below an objective standard of
9 reasonableness,” and (2) that the attorney’s deficient performance prejudiced the defendant such
10 that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
11 the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. A court
12 considering a claim of ineffective assistance of counsel must apply a “strong presumption” that
13 counsel’s representation was within the “wide range” of reasonable professional assistance. Id. at
14 689. The petitioner’s burden is to show “that counsel made errors so serious that counsel was
15 not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
16 And, to establish prejudice under Strickland, it is not enough for the habeas petitioner “to show
17 that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
18 Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose
19 result is reliable.” Id. at 687.
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In analyzing a claim of ineffective assistance of counsel under Strickland, a court may

21 first consider either the question of deficient performance or the question of prejudice; if the
22 petitioner fails to satisfy one element of the claim, the court need not consider the other. See
23 Strickland, 466 U.S. at 697.

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C.

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In his remaining claims, Denson contends that his federal constitutional rights were

Denson’s Claims

3 violated as a result of ineffective assistance of his trial counsel with respect to his sentencing
4 because his counsel “failed to review information relative to sentencing,” “failed to provide
5 mitigation in support of concurrent sentences,” “failed to submit both errors and findings to the
6 court in the presentence investigation report (PSI), and failed to expose the judgment of
7 convictions (JOC) to investigations.” ECF No. 46, pp. 3-3f (as in original).
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Denson asserted these claims in his state habeas action. On his appeal in that case, the

9 Nevada Court of Appeals ruled as follows:
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... Denson claims trial counsel was ineffective at sentencing because she
failed to prepare. He claims trial counsel did not review his prior convictions and
did not argue several of the convictions were old and stale and all of them were
nonviolent. He also claimed trial counsel did not develop mitigation evidence
including he had worked for two years as a miner, had the support of his family,
or had struggled to find work as a felon. Denson fails to demonstrate he was
prejudiced by counsel’s failure to prepare more for sentencing. Denson stipulated
to treatment as a large habitual criminal. The only real issue at sentencing was
whether this case should be run consecutive to his other case. The district court
concluded, given Denson’s overwhelming and expansive criminal record, he
could not demonstrate a reasonable probability he would have received concurrent
time rather than consecutive time had trial counsel presented additional mitigation
evidence. Substantial evidence supports the decision of the district court. Denson
had numerous prior convictions that spanned 24 years and 5 states. He also had 5
pending cases, three of which were dismissed pursuant to the negotiations and the
State also agreed not to pursue other uncharged cases from 2009 and 2010.
Further, Denson allegedly committed another crime while out on bail in the
instant case. Therefore, the district court did not err in denying this claim.

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20 Order of Affirmance, Exh. 30, pp. 3-4 (ECF No. 40-6, pp. 4-5).
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The state court’s ruling was reasonable. Denson does not make any showing that he was

22 prejudiced by the alleged errors of counsel. There is no reasonable probability that, but for the
23 alleged errors of counsel, the result of Denson’s sentencing would have been different.

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In Ground 1 of his second amended petition, Denson alleges the following specific errors

2 of his trial counsel at his sentencing:
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Counsel provided an insufficient response when the sentencing judge
asked: “One thing that this man has done in his adult life that is a positive thing,
just tell me one, because I don’t see it.” See Second Amended Petition (ECF No.
46), pp. 3a-3f; see also Sentencing Transcript, Exh. 14, p. 10 (ECF No. 38-14,
p. 11).
Counsel did not inform the sentencing judge that Denson had worked for
numerous years and was a taxpayer. See Second Amended Petition (ECF No. 46),
pp. 3a, 3c.
Counsel did not inform the sentencing judge that Denson “had an
honorable discharge from probation in Utah.” See id.

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Counsel did not inform the sentencing judge that Denson had marketable
skills as a certified welder. See id. at 3a.
Counsel did not inform the sentencing judge that Denson “worked in
uranium mines in Utah.” See id.

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Counsel did not inform the sentencing judge that Denson is an artist.
See id.
Counsel did not inform the sentencing judge that Denson “married a
woman with children and helped both financially and emotionally in their
raising.” See id.
Counsel did not inform the sentencing judge that Denson’s “childhood
was from a broken home from age 11 on.” See id.

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Counsel did not inform the sentencing judge that Denson’s prior
convictions were for non-violent offenses. See id.
Counsel did not inform the sentencing judge that a significant number of
Denson’s prior convictions were “remote,” from when Denson was in his teens.
See id.
Counsel did not inform the sentencing judge that there was a “break of
some 13 years in between offenses.” See id. at 3d.

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Counsel did not inform the sentencing judge that the prosecutor, after
speaking with Denson, determined that the State would not argue for consecutive
sentences. See id. at 3b, 3c.
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Counsel did not present the sentencing judge with a “reasonable synopsis
of the nonviolent offenses and the over 25 year old convictions went ignored.”
See id. at 3b (as in original).

3 There is no question that, at Denson’s sentencing hearing, the sentencing court was informed of
4 all the information that Denson faults his counsel for not articulating. See Sentencing Transcript,
5 Exh. 14 (ECF No. 38-14); Presentence Investigation Report, Exh. 62 (ECF No. 54-1) (filed
6 under seal). Denson has not identified any significant mitigating evidence that was unknown to
7 the sentencing judge. And Denson has not pointed to any significant error in the presentence
8 investigation report that was left uncorrected. I must conclude, then, that what is left of
9 Denson’s argument is that his counsel should have argued more convincingly to the sentencing
10 judge, making use of the information specified by Denson, in response to the judge’s comment—
11 which was apparently a rhetorical comment, rather than a question seeking information from
12 counsel—that he saw nothing positive that Denson had done in his adult life. This argument is
13 meritless. In view of Denson’s extensive criminal history, including his criminal activity while
14 on bail in this case, there is no showing of a reasonable probability that the judge would have
15 sentenced Denson to concurrent prison time, instead of consecutive time, had counsel argued
16 Denson’s case differently at the sentencing hearing. The state court did not unreasonably apply
17 Strickland in denying Denson relief. I will therefore deny Denson’s habeas petition.
18 III.

Certificate of Appealability

19

The standard for issuance of a certificate of appealability (COA) calls for a

20 “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). The
21 Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:
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Where a district court has rejected the constitutional claims on the merits,
the showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong. The issue becomes somewhat more
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complicated where, as here, the district court dismisses the petition based on
procedural grounds. We hold as follows: When the district court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.

5 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,
6 1077-79 (9th Cir. 2000). The Supreme Court further illuminated the standard in Miller7 El v. Cockrell, 537 U.S. 322 (2003):
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We do not require petitioner to prove, before the issuance of a COA, that
some jurists would grant the petition for habeas corpus. Indeed, a claim can be
debatable even though every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that petitioner will not
prevail. As we stated in Slack, “[w]here a district court has rejected the
constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.”

13 Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
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The claims in Ground 1 of Denson’s second amended habeas petition, addressed

15 on their merits in this order, do not satisfy the standard for a certificate of appealability.
16 In addition, I have reviewed my order of September 14, 2018 (ECF No. 49), and a
17 certificate of appealability is unwarranted with respect to the procedural ruling in that
18 order regarding Ground 2 of Denson’s second amended habeas petition. Neither the
19 ruling in this order, nor the ruling in my September 14, 2018 order, is reasonably
20 debatable. I therefore deny Denson a certificate of appealability.
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IT IS THEREFORE ORDERED that the petitioner’s Second Amended Petition

22 for Writ of Habeas Corpus (ECF No. 46) is DENIED.
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IT IS FURTHER ORDERED that the petitioner is denied a certificate of

2 appealability.
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IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter

4 judgment accordingly.
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Dated: February 21, 2019.

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__________________________________
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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