Petrosky v. Palmer et al

Filing 65

ORDER denying in its entirety ECF No. 42 Second Amended Petition; denying a certificate of appealabiity; directing Clerk to enter judgment and close case. Signed by Judge Robert C. Jones on 9/27/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PETER D. PETROSKY,

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Case No. 3:10-cv-00361-RCJ-WGC
Petitioner,

ORDER

v.
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JACK PALMER, et al.,
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Respondents.
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Petitioner Peter D. Petrosky’s counseled, second-amended 28 U.S.C. § 2254

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habeas petition comes before the court for disposition on the merits (ECF No. 42).

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I.

Procedural History and Background

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As set forth in this court’s order denying respondents’ motion to dismiss, on October

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16, 2008, Petrosky pleaded guilty to two counts of lewdness with a child under the age

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of fourteen years (exhibit 18 to second-amended petition, ECF No. 42). 1 The state

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district court sentenced him to two consecutive terms of ten years to life in prison. Exh.

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21.
Petrosky did not file a direct appeal. On March 23, 2009, he f iled a pro se state

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postconviction petition; the state district court appointed counsel, and counsel f iled a

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supplemental petition on June 3, 2009. Exhs. 25, 29, 32. The state district court

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dismissed the petition on August 21, 2009. Exh. 37. The Nevada Supreme Court

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Exhibits referenced in this order are exhibits to the second-amended petition, ECF No. 42, and are found
at ECF Nos. 14-16, 22, 28-35, and 38.

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affirmed the dismissal on May 18, 2010. Exh. 53. Meanwhile, Petrosky had filed a
second state postconviction petition on December 2, 2009. Exh. 43.
While the second state postconviction petition was pending, Petrosky dispatched his
federal petition for mailing on June 1, 2010 (ECF No. 7). This court appointed counsel
(ECF No. 6). On September 16, 2013, this court ordered that these proceeding s be
stayed pending resolution of Petrosky’s second state postconviction petition (ECF No.
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The state district court held an evidentiary hearing on the second state
postconviction petition and denied the petition on May 21, 2013. Exhs. 77, 83. On April
10, 2014, the Nevada Supreme Court affirmed the denial of the second state
postconviction petition, concluding that the claims were procedurally barred and that
Petrosky had failed to demonstrate good cause and actual prejudice to excuse the
default. Exh. 94. Remitter issued on May 7, 2014. Exh. 95.
On January 9, 2015, this court granted Petrosky’s motions to reopen the case and to
file a second-amended petition (ECF No. 40). Respondents have answered the
second-amended petition (ECF No. 62), and Petrosky replied (ECF No. 63).
II.

Legal Standards
a.

Antiterrorism and Effective Death Penalty Act (AEDPA)

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

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is 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

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Supreme Court has emphasized “that even a strong case for relief does not mean the

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state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538

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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

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state-court rulings, which demands that state-court decisions be given the benefit of the

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doubt”) (internal quotation marks and citations omitted).

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A state court decision is contrary to clearly established Supreme Court

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precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that

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contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state

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court confronts a set of facts that are materially indistinguishable from a decision of [the

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Supreme Court] and nevertheless arrives at a result different from [the Supreme

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Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,

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405-06 (2000), and citing Bell, 535 U.S. at 694.

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A state court decision is an unreasonable application of clearly established

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Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court

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identifies the correct governing legal principle from [the Supreme Court’s] decisions but

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unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538

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U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause

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requires the state court decision to be more than incorrect or erroneous; the state

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court’s application of clearly established law must be objectively unreasonable. Id.

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(quoting Williams, 529 U.S. at 409).
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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
panel, applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393
F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be
correct unless rebutted by clear and convincing evidence. The petitioner bears the
burden of proving by a preponderance of the evidence that he is entitled to habeas
relief. Cullen, 563 U.S. at 181. Finally, in conducting an AEDPA analysis, this court
looks to the last reasoned state-court decision. Murray v. Shriro, 745 F.3d 984, 996 (9th
Cir. 2014).
b.

Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are governed by the two-part test
announced in 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 demonstrating that (1) the attorney made errors so serious that he or she was
not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the
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,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. A reasonable probability is “probability sufficient to undermine confidence in
the outcome.” Id. Additionally, any review of the attorney’s performance must be “highly
deferential” and must adopt counsel’s perspective at the time of the challenged conduct,
in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the
petitioner’s burden to overcome the presumption that counsel’s actions might be
considered sound trial strategy. Id.
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
omitted). When the ineffective assistance of counsel claim is based on a challenge to a
guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that
there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985).
If the state court has already rejected an ineffective assistance claim, a federal
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).
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id.
The United States Supreme Court has described federal review of a state
supreme court’s decision on a claim of ineffective assistance of counsel as “doubly
deferential.” Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411,
1413 (2009)). The Supreme Court emphasized that: “We take a ‘highly deferential’ look

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at counsel’s performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403
(internal citations omitted). Moreover, federal habeas review of an ineffective assistance
of counsel claim is limited to the record before the state court that adjudicated the claim
on the merits. Cullen, 563 U.S. at 181-84. The United States Supreme Court has
specifically reaffirmed the extensive deference owed to a state court's decision
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 ––––, 129 S.Ct. at 1420. T he
Strickland standard is a general one, so the range of reasonable
applications is substantial. 556 U.S. at ––––, 129 S.Ct. at 1420. 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.
Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance

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of counsel must apply a ‘strong presumption’ that counsel’s representation was within
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the ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland,
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466 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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c. Procedural Default
“Procedural default” refers to the situation where a petitioner in fact presented a
claim to the state courts but the state courts disposed of the claim on procedural
grounds, instead of on the merits. A federal court will not review a claim for habeas
corpus relief if the decision of the state court regarding that claim rested on a state law
ground that is independent of the federal question and adequate to support the
judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).
The Coleman Court explained the effect of a procedural default:

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In all cases in which a state prisoner has defaulted his federal claims in
state court pursuant to an independent and adeq uate state procedural
rule, federal habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The
procedural default doctrine ensures that the state’s interest in correcting its own
mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d
1039, 1046 (9th Cir. 2003).
To demonstrate cause for a procedural default, the petitioner must be able to “show
that some objective factor external to the defense impeded” his efforts to comply with
the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to
exist, the external impediment must have prevented the petitioner from raising the
claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991).
The Court in Coleman held that ineffective assistance of counsel in postconviction
proceedings does not establish cause for the procedural default of a claim. Coleman,
501 U.S. at 750. In Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012), the Court
established a “narrow exception” to that rule. The Court explained that

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Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.
132 S.Ct. at 1320.
In Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014), the Ninth Circuit provided
guidelines for applying Martinez, summarizing the analysis as follows:
To demonstrate cause and prejudice sufficient to excuse the
procedural default, therefore, Martinez . . . require[s] that Clabourne make
two showings. First, to establish “cause,” he must establish that his
counsel in the state postconviction proceeding was ineffective under the
standards of Strickland [v. Washington, 466 U.S. 668 (1984)]. Strickland,
in turn, requires him to establish that both (a) postconviction counsel's
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performance was deficient, and (b) there was a reasonable probability
that, absent the deficient performance, the result of the postconviction
proceedings would have been different. Second, to establish “prejudice,”
he must establish that his “underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.”

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Clabourne, 745 F.3d at 377 (citations omitted).

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I.

Instant Petition

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In their motion to dismiss, respondents argued that most subparts of ground 1, as

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well as ground 2 in its entirety, should be dismissed as procedurally barred (ECF No.

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48, pp. 6-7). Except for one subpart of ground 1(B)(4) and ground 1(B)(5)—which will

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be addressed on the merits—the grounds set forth below were presented to the Nevada

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Supreme Court for the first time in Petrosky’s appeal of the denial of his second state

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postconviction petition. Exh. 89. Thus, they are procedurally defaulted (see ECF No.

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57; exh. 94). Petrosky argues, however, that the state procedural default should not bar

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his federal claims because he can show cause and prejudice to excuse the default

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(ECF Nos. 52, 63). Petrosky contends that his state postconviction counsel was

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ineffective, and therefore, under Martinez, the procedural default of these grounds

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should be excused. Id.

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Ground 1(B)(1)

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Petrosky contends that his counsel rendered ineffective assistance in violation of his

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Sixth and Fourteenth Amendment rights because his representations about the plea

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deal were “grossly unprofessional” (ECF No. 42, pp. 14). Petrosky alleges that his

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counsel failed to meaningfully inform him about his case and forced Petrosky into

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making a decision without further investigation of the case or adequate time to consider

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the offer. Id.

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Petrosky testified at the evidentiary hearing on his second state postconviction

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petition. Exh. 77, pp. 10- 98. He testified that his plea counsel, Scott Edwards,

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specifically advised Petrosky to take the plea deal. Id. at 23. Petrosky stated that

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Edwards told him that “hopefully” the court would sentence him to two concurrent terms,
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not consecutive. Id. at 33. He testified that he thought the sentences “probably” would
be run concurrently. Id. at 34. On direct, Petrosky first stated “I think [Edwards] did give
me some police reports or something” and also that he never saw any of the police
reports. Id. at 25, 50. He stated that the alleged child victims had told him that they had
been interviewed by police. He said that he learned from the children that they did not
cooperate initially with the police. Id. at 59, 88-90. In response to his counsel asking if
he asked Edwards to file a direct appeal, Petrosky said that he thought he asked
Edwards to file a direct appeal, but then he also said that no one ev en told him about a
direct appeal. Id. at 66.
On cross examination, Petrosky testified that Edwards gave him a few things to read
when he was considering the plea deal, including an incident report or a police report.
Petrosky stated that he did not read the docum ents because he relied on Edwards. Id.
at 75-76. He testified that Edwards told him that the state district court might run the
sentences consecutively or concurrently. Id. at 85. On cross examination, Petrosky
was unable to state specifically what it was that was in the discovery file that he did not
know prior to pleading guilty. On redirect, Petrosky testified that, prior to pleading guilty,
he did not know how many interviews of the children took place, what the specific
questions and answers were, how long police officers talked with the children before the
children began to make accusations, and that the police officers told the children things
that were untrue about the case. Id. at 90-95.
Petrosky’s plea counsel Scott Edwards also testified. Exh. 77, pp. 102-140. He
testified that he discussed what the children said in the interviews and asked Petrosky
how he would respond. He stated that he discussed the pros and cons of the plea
agreement and of going to trial and that he did not push very hard one way or the other.
He noted that Petrosky had a prior conviction for a sex offense and that he thus faced a
possibility of a sentence of life without the possibility of parole. Edwards testified that he
and Petrosky discussed what trial would entail, including witnesses, and Petrosky was

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adamant about not going to trial. Edwards stated that Petrosky was unhappy with the
plea offer and did not want to go to trial, and really wanted Edwards to figure out a third
option, which Edwards was unable to offer. Id. at 105-107. He stated that he read the
police reports to Petrosky prior to the decision to plead guilty, going through page by
page, sometimes paraphrasing, sometimes verbatim. Id. at 111, 136. Edwards testified
that in his view, if the witnesses testified consistently with their statements to the police,
it was likely that Petrosky would be convicted of one or more of the nine counts and
that, overall, he deemed it more likely than not that Petrosky would be convicted at trial
of one or more counts. He stated that he told Petrosky that he would argue for
concurrent sentences, but that there were some factors that were not in Petrosky’s
favor, including a prior sex offense conviction and that there were two alleged victims in
this case. Id. at 129-132.
The state district court denied the second state postconv iction petition. Ex. 83. The
court found that Petrosky’s testimony was not credible and that Edwards testified
credibly. Id. at 4-6. The court found specifically:

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[Petrosky] asserted that counsel grossly mis-characterized the strength
of the prosecutor’s case. Petrosky failed to show exactly how it was
characterized at all, beyond responding to counsel’s suggestions that
perhaps Edwards had said that prevailing at trial was not likely. Petrosky
himself seemed inclined to advance the theory that Edwards had not given
any advice at all, and did not credibly testify that Edwards had given a
grossly inaccurate evaluation of the likelihood of prevailing at trial. At
page 75 of the transcript of the habeas corpus hearing, Petrosky testified
that Edwards had not voiced any opinions about the strength of the
evidence. At page 81 he unequivocally denied that Edwards had voiced
any opinion at all about the strength of the evidence, only seconds after
swearing that Edwards had voiced the opinion that “it looks bad.”
Petrosky wavered on other points as well, and that affected his
credibility. At various times he claimed that Edwards had not shown him
any reports, and at other times he claimed that Edwards showed him
reports but that he declined to read them, and at other times he claims he
read some things but could not be certain of what he had read and what
he had not.
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Edwards also testified in the habeas corpus hearing. He testified
credibly that he and his client had rather extensive discussions concerning
the evidence, including the fact that the child-witnesses were initially not
willing to incriminate Petrosky.
The court finds, based on the testimony, that there was no incorrect
assessment of the evidence, and certainly no assessment that fell below
any objective standard. Assuming that there is some objective standard
for the evaluation of the strength of the prosecutor’s case, the court is not
persuaded that the performance of counsel fell below that standard.

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Id. at 4-5.

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Affirming the denial of the second state postconviction petition, the Nevada Supreme

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Court noted:
Appellant testified at the evidentiary hearing that he knew, prior to
pleading guilty, that the children were reluctant to accuse him because
they informed him of that fact after their interviews. Further, trial counsel
testified that he discussed the police reports with appellant prior to him
pleading guilty. The district court concluded that trial counsel was credible
and that appellant was not credible and substantial evidence supports the
decision of the district court.

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Exh. 94, p. 3.

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Petrosky has failed to show that this is a substantial claim of ineffective assistance of

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counsel. This claim is dismissed as procedurally barred.

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Ground 1(B)(2)

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Petrosky alleges that his counsel was ineffective for failing to discover the audio

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tapes of the initial interviews of the victims, which were in the State’s possession at the

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time Petrosky entered his plea (ECF No. 42, p. 15). Petrosky argues that the audio

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tapes revealed the interviewer’s coercive questioning. Id.

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The state district court explained:
Edwards did not specifically recall listening to every recorded interview
of every witness. The court notes that the better practice would be to
listen to each interview, if possible, but the court finds that Petrosky has
failed to prove prejudice. He failed to prove that if only Edwards had
listened to those recordings, that would have changed the advice of
Edwards or the decision of Petrosky.
Exh. 83, p. 6.
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Again, the Nevada Supreme Court noted that Petrosky testified at the evidentiary
hearing that he knew, before he pled guilty, that the children were reluctant to accuse
him because they told him that after their interviews. Exh. 94, p. 3.

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Petrosky has not established that he would have insisted on going to trial but for
Edwards not obtaining the audio tapes; nor has he established that this is a substantial
claim of ineffective assistance of counsel. Thus, the claim is dismissed as procedurally
defaulted.

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Ground 1(B)(3)

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Petrosky claims that his counsel was ineffective because he grossly misadvised
Petrosky about the probability that his sentences would be run concurrently. Id. at 1516.
As set forth above, the state district court held that Petrosky did not testify credibly at
the evidentiary hearing when he stated that Edwards assured him that the sentences
would be concurrent. Exh. 83. Instead, the portions of the testimony of both Petrosky
and Edwards that the court found credible reflected that Edwards expressed hope that
the terms would be concurrent, though he noted that Petrosky’s prior conviction and the
two victims in this case might be factors that the state district court weighed against
concurrent terms. See e.g., exh. 77, pp. 33-34.
The state district court further found:

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Petrosky also asserted that counsel induced the plea by assuring
Petrosky that he was certain to get concurrent sentences. That claim was
untrue. Petrosky himself testified at various times that Edwards had said
he “hoped” for concurrent sentences, but there was not credible testimony
that Edwards induced the plea by promising concurrent sentences. Our
court has held that a “mere subjective belief of a defendant as to potential
sentence, or hope of leniency, unsupported by any promise from the State
or indication by the court, is insufficient to invalidate a guilty plea as
involuntary or unknowing.” Rouse v. State, 541 P.2d 643, 644 (Nev.
1975).
Exh. 83, p. 5.

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Petrosky has not shown that this is a substantial claim of ineffective assistance of
counsel. Thus, the claim is dismissed as procedurally defaulted.
Ground 1(B)(4)

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Petrosky claims that his counsel was ineffective when he failed to investigate or
present any mitigating evidence at sentencing (ECF No. 42, p. 16-17). Specifically,

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Petrosky alleges counsel should have investigated and presented (1) a psychosexual

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evaluation to the district court at sentencing to address concerns regarding recidivism;

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(2) background information regarding Petrosky having been abused as a child; and (3)

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evidence regarding Petrosky’s work history and ties to the community. Id.

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With respect to the claim that Edwards was ineffective for not having a psychosexual
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evaluation done prior to sentencing, the Nevada Supreme Court affirmed the denial of

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this claim in Petrosky’s first state postconviction petition. Exh. 53, pp. 2-3. Thus,

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Petrosky must demonstrate that the state supreme court’s decision was contrary to or

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an unreasonable application of clearly established federal law.

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In denying this claim, the state district court found that there was no reasonable
probability that the court would have run the sentences concurrently rather than

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consecutively. Exh. 37, p. 5. The court explained: “There is not reasonable probability
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that the court would have made the sentences concurrent even if a psychiatrist came

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and testified. The situation which led to the abuse was egregious in the court’s mind

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and the resulting sentence was condign.” Id.

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Affirming the district court’s denial, the Nevada Supreme Court reasoned that
Petrosky had failed to demonstrate that a psychosexual evaluation would have been
favorable. Exh. 53, pp. 2-3. The Nevada Supreme Court concluded: “The district court

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stated in its order below that a psychosexual evaluation would not have changed his
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sentencing decision because the decision was based on the nature of the offense and
the fact that appellant had previously been convicted of a sexual offense against a
child.” Id. at 2.

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Petrosky has presented nothing that demonstrates that the Nevada Supreme Court’s
decision was contrary to, or involved an unreasonable application of, clearly established

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federal law, as determined by the U.S. Supreme Court, or was based on an

8

unreasonable determination of the facts in light of the evidence presented in the state

9

court proceeding. 28 U.S.C. § 2254(d). Therefore, Petrosky’s claim in ground 1(B)(4)

10

that his counsel was ineffective at sentencing for failing to arrange for a psychosexual

11
evaluation is denied.
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13

The second and third claims in ground 1(B)(4) are that Edwards was ineffective at

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sentencing for failing to present background information that Petrosky was abused as a

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child and failing to present evidence regarding Petrosky’s work history and ties to the

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community. Petrosky presented the second and third subparts f or the first time in his

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second state postconviction petition. Exh. 89. Thus, they are procedurally defaulted,

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absent good cause and actual prejudice to excuse the default.

19
Respondents point out that Petrosky obviously was aware that he himself had been
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a victim of sexual abuse, and he had an opportunity to speak at sentencing (ECF No.

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62, p. 11). Petrosky acknowledges that there is a reference to his sexual abuse in the

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presentence investigation report, characterizing it as mentioned “dismissively” (ECF No.

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63, p. 17).

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Edwards testified at the state postconviction evidentiary hearing that his strategy at
sentencing was to argue that, based on Petrosky’s age, one life sentence (i.e.,

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concurrent sentences) was enough. Exh. 77, pp. 132-135. The record reflects that
14

1
2
3

Edwards also emphasized Petrosky’s remorse. Exh. 22, pp. 4-8. Petrosky was facing
trial on nine counts. As the state district court noted, the case had the potential to
include other improper acts, including his prior conviction for a sex offense and

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5
6

allegations of improper contact by Petrosky’s biological son. See exh. 83, p. 6.
The purpose of Strickland is not to review counsel’s performance to determine if it

7

would have been better for counsel to do something different; the Strickland inquiry is

8

whether what counsel actually did was objectively unreasonable. 466 U.S. at 687-91.

9

Moreover, at sentencing the judge specifically questioned whether one possible

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sentence was life without the possibility parole. Exh. 22, pp. 7-8. The State indicated

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that the guilty plea agreement was for two counts of lewdness, and therefore, life
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13

without the possibility of parole was not an option. Id. The court made clear its position

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that consecutive sentences were appropriate and indeed implied that it would have

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imposed life without the possibility of parole if that had been an option. Id.

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18

Petrosky simply has not shown that there is a reasonable probability of a different
outcome at sentencing if Edwards had presented evidence that Petrosky had been
sexually abused and of his employment history. Accordingly, these claims in ground

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1(B)(4) do not present substantial ineffective assistance of counsel claims and are
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dismissed as procedurally barred.

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Ground 1(B)(5)

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Petrosky contends that Edwards was ineffective for failing to inform Petrosky of his

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right to appeal (ECF No. 42, p. 17). The Nevada Supreme Court affirmed the denial of

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this claim in Petrosky’s first state postconviction petition. Exh. 53, p. 3. Thus, Petrosky
must demonstrate that the state supreme court’s decision was contrary to or an

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unreasonable application of clearly established federal law.
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1
2
3

After sentencing, an attorney has a duty to consult with his client about an appeal
when there is reason to think that (1) a rational def endant would want to appeal, or (2)
the defendant reasonably demonstrated to counsel that he was interested in appealing.

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5
6

Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). In making this determination courts
are required to “take into account all the information counsel knew or should have

7

known.” Id. The Court in Flores-Ortega stated that it is highly relevant whether the

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conviction was pursuant to a trial or a guilty plea, “both because a guilty plea reduces

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the scope of potentially appealable issues and because such a plea m ay indicate that

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the defendant seeks an end to judicial proceedings.” Id.

11
The Nevada Supreme Court affirmed the denial of this claim in Petrosky’s first state
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13

postconviction petition. Exh. 53, p. 3 (citing Flores-Ortega, 528 U.S. at 479-480). The

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state supreme court stated that Petrosky failed to demonstrate deficiency because he

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failed to demonstrate that he requested that Edwards file an appeal and also pointed

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out that the guilty plea agreement advised Petrosky of his limited right of appeal. Id.

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18

Petrosky does not even allege that he would have appealed had Edwards told him
he had a right to appeal. See U.S. v. Sandoval-Lopez, 409 F.3d 1193, 1196 (9 th Cir.

19
2005). Nor has he demonstrated that he had any nonfrivolous grounds for appeal (see
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21

ECF No. 42, p. 17). He has not shown that the Nevada Supreme Court’s decision was

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contrary to, or involved an unreasonable application of, clearly established federal law,

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as determined by the U.S. Supreme Court, or was based on an unreasonable

24

determination of the facts in light of the evidence presented in the state court

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proceeding. 28 U.S.C. § 2254(d). Accordingly, ground 1(B)(5) is denied.

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16

1
2
3

Ground 2
Petrosky alleges in ground 2 that he did not enter his guilty plea knowingly,
intelligently or voluntarily, in violation of his Fifth and Fourteenth Amendment rights

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5
6

(ECF No. 42, p. 18). He argues that under Martinez he can show cause and prejudice
to excuse the procedural default of this claim (ECF No. 63, pp. 22-24). However,

7

Martinez does not extend to this claim. The Court in Martinez held that ineffective

8

assistance of state postconviction counsel may provide cause to excuse the procedural

9

default of ineffective assistance of trial counsel claims. However, ground 2 is a

10

substantive or stand-alone claim, it is not a claim of ineffective assistance of trial

11
counsel. Ground 2, therefore, is dismissed as procedurally defaulted.
12
13

Moreover, the court notes that, as discussed above in relation to the ineffective

14

assistance of counsel claims, this claim is belied by the record. The record reflects that

15

while Petrosky was unhappy with the proffered plea, he adamantly refused to go to trial.

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Edwards and Petrosky discussed the evidence against Petrosky in the police reports,

17

the nine counts he would face if he went to trial, the potential effect of his past

18

conviction, and the fact that under the plea agreement the court would have discretion

19
to run the sentences concurrently or consecutively. Thus, ground 2 also lacks merit.
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21

II.

Certificate of Appealability

22

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

24

appealability (COA). Accordingly, the court has sua sponte evaluated the claims within

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26

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).

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28
17

1
2
3

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

4
5
6

would find the district court's assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463

7

U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable

8

jurists could debate (1) whether the petition states a valid claim of the denial of a

9

constitutional right and (2) whether the court's procedural ruling was correct. Id.

10

Having reviewed its determinations and rulings in adjudicating Petrosky’s petition,

11
the court finds that reasonable jurists would not find its determination of any grounds to
12
13
14

be debatable pursuant to Slack. The court therefore declines to issue a certificate of
appealability.

15

III.

16

IT IS THEREFORE ORDERED that the second-amended petition (ECF No. 42) is

17
18

Conclusion

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

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IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
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22

close this case.
DATED: 27 September 2017.

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ROBERT C. JONES

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