Cunningham v. Williams et al

Filing 11

ORDER. IT IS THEREFORE ORDERED that 9 petitioner's belated motion for enlargement of time is GRANTED. IT IS FURTHER ORDERED that 8 the amended petition for a writ of habeas corpus ) is DENIED. The clerk of the court shall enter judgment accordingly and close this action. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Andrew P. Gordon on 10/11/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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TONY L. CUNNINGHAM,

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Petitioner,

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vs.

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Case No. 2:16-cv-00388-APG-CWH

BRIAN E. WILLIAMS, et al.,

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ORDER

Respondents.

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Before the court are the amended petition (ECF No. 8) and a belated motion for enlargement

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of time (ECF No. 9). The court grants the motion for enlargement of time. The court has reviewed

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the amended petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United

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States District Courts. The court will deny the petition because it lacks merit on its face.

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In three cases before the Second Judicial District Court of the State of Nevada, petitioner

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was convicted of robbery, robbery with the use of a deadly weapon, and robbery of an elderly

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person. The court takes judicial notice of the on-line docket of the Nevada Supreme Court in

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Cunningham v. State, No. 67687.1 Petitioner appealed all three judgments, and the Nevada

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Supreme Court consolidated the cases. Petitioner asked to withdraw all three appeals, and on April

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21, 2015, the Nevada Supreme Court dismissed them. Petitioner then filed post-conviction habeas

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corpus petitions in the state district court. The state district court has denied those petitions.

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http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=35894 (report generated
October 7, 2016).

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Appeals from all three denials currently are pending before the Nevada Supreme Court, case

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numbers 70463, 70464, 70465.2

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Petitioner commenced this action with a petition (ECF No. 4) that argued he was filing a

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protective petition under Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). However, the petition

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otherwise was blank. The court directed petitioner to file an amended petition in which he

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presented all his claims for relief. Order (ECF No. 5). The amended petition (ECF No. 8)

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followed.

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Petitioner’s sole ground for relief is a claim of ineffective assistance of counsel. A

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

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

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

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

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

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

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

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at 697.

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The ground appears to be unexhausted because petitioner’s state habeas corpus appeals still

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are pending, but the court denies the petition because the ground is without merit. See 28 U.S.C.

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§ 2254(b)(2). Petitioner cannot satisfy the Strickland standard. He argues that counsel failed to

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challenge the validity of the Nevada Revised Statutes under the doctrine of separation of powers

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because in 1951 the Nevada Legislature appointed three justices of the Nevada Supreme Court to a

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statute revision commission. Regardless of who was on that commission, on January 25, 1957 the

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Nevada Legislature duly enacted the Nevada Revised Statutes as the laws of Nevada. 1957 Nev.

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Stat 1-4. Furthermore, in 1995 the Nevada Legislature amended the robbery statute, Nev. Rev. Stat.

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§ 200.380, in 2007 the Nevada Legislature amended the statute imposing an additional penalty for

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use of a deadly weapon, Nev. Rev. Stat. § 193.165, and in 2007, 2011, and 2013 the Nevada

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http://caseinfo.nvsupremecourt.us/public/caseSearch.do (report generated October 7, 2016).
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Legislature amended the statute imposing an additional penalty for certain crimes when the victim

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is 60 years or older, Nev. Rev. Stat. § 193.167.3 The issue underlying the sole ground for relief in

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the amended petition is completely without merit and is frivolous. Counsel did not perform

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deficiently, and petitioner suffered no prejudice, by not raising this issue before the state courts.

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Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and the
court will not issue a certificate of appealability.

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IT IS THEREFORE ORDERED that petitioner’s belated motion for enlargement of time
(ECF No. 9) is GRANTED.

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IT IS FURTHER ORDERED that the amended petition for a writ of habeas corpus (ECF
No. 8) is DENIED. The clerk of the court shall enter judgment accordingly and close this action.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: October 11, 2016.

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_________________________________
ANDREW P. GORDON
United States District Judge

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Section 193.167 was amended in 2015, too, but that occurred after petitioner committed his

crimes.
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