Lister v. Cox et al
Filing
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ORDER denying 7 Petition; denying a certificate of appealability; directing Clerk to enter judgment and close case. Signed by Judge Robert C. Jones on 3/29/2016. (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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J.C. LISTER,
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Case No. 3:12-cv-00456-RCJ-VPC
Petitioner,
ORDER
v.
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JAMES GREG COX, et al.,
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Respondents.
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This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by
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petitioner J.C. Lister is before the Court for final disposition of the merits of the
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remaining ground. Respondents have answered the petition (ECF No. 24), and Lister
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replied (ECF Nos. 28, 30).
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I.
Procedural History and Background
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On August 10, 2010, Lister pleaded guilty to trafficking a controlled substance
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(exhibits to respondents’ motion to dismiss, ECF No. 13, exh. 23).1 The state district
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court sentenced him to a term of sixty to one-hundred-fifty months, consecutive to the
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sentence imposed in Case No. 3:10-cr-0071-LRH-RAM. Exh. 47. The judgment of
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conviction was filed on May 18, 2011. Exh. 48. Lister appealed, and the Nevada
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Supreme Court affirmed his sentence on November 18, 2011. Exh. 61. Remittitur
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issued on December 15, 2011. Exh. 63.
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The exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 13 and are
found at ECF Nos. 14-16.
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Lister dispatched this federal petition for writ of habeas corpus on August 22, 2012
(ECF No. 7). Respondents have answered the remaining ground (ECF No. 24).
II.
Legal Standard under the Antiterrorism and Effective Death Penalty Act
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(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
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(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.
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 (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, 131 S.Ct. 1388,
1398 (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).
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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 v. Andrade, 538 U.S. 63 (2003) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002).
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.” Andrade, 538
U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause
requires the state court decision to be more than incorrect or erroneous; the state
court’s application of clearly established law must be objectively unreasonable. Id.
(quoting Williams, 529 U.S. at 409).
To the extent that the state court’s factual findings are challenged, the
“unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas
review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause
requires that the federal courts “must be particularly deferential” to state court factual
determinations. Id. The governing standard is not satisfied by a showing merely that
the state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA
requires substantially more deference:
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.... [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that we
would reverse in similar circumstances if this were an appeal from a
district court decision. Rather, we must be convinced that an appellate
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 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 v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
III.
Instant Petition
In the remaining ground, ground 1, Lister alleges that federal and state government
agents acted in concert and initiated multiple transactions for drugs in multiple
jurisdictions and that state task force agents used federal ATF funds to purchase the
controlled substances involved in the state case (ECF No.7, p. 3). He further contends
that state task force agents enticed him to travel from Washoe County to Pershing
County in order to find a jurisdiction sympathetic to their mission involving outrageous
government conduct and sentencing entrapment and manipulation. He argues that
Judge Wagner failed to make findings of facts on this issue and then sentenced him to a
term to run consecutive to his federal sentence. Lister alleges that these actions
violated his Fifth and Fourteenth Amendment rights to fundamental fairness and due
process. Id.
In affirming Lister’s conviction, the Nevada Supreme Court explained:
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Appellant JC Lister contends that the district court abused its discretion
by ordering the sentence to run consecutively to the sentence imposed in
a federal case because “the conduct from the government was sufficiently
outrageous” and he was the victim of “sentence entrapment.”[FN 1] See
U.S. v. Staufer, 38 F.3d 1103, 1106 (9th Cir.1994) (“Sentencing
entrapment or sentence factor manipulation occurs when a defendant,
although predisposed to commit a minor or lesser offense, is entrapped in
committing a greater offense subject to greater punishment.” (internal
quotation marks omitted)). We disagree. Even assuming, without
agreeing, that sentence entrapment is a valid consideration in deciding
between concurrent and consecutive sentences, the record does not
support a finding of sentence entrapment in this case. Further, it is within
the district court's discretion to impose consecutive sentences, see NRS
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176.035(1), and we conclude that the district court did not abuse its
discretion.
------FN1. To the extent that Lister's sentencing entrapment argument could
be construed as a defense to the charged offense, such a challenge was
waived by the entry of his guilty plea. See Webb v. State, 91 Nev. 469,
470, 538 P.2d 164, 165 (1975) (the entry of a guilty plea generally waives
any right to appeal from events occurring prior to the entry of the plea).
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Exh. 61.
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Lister does not argue that the Nevada Supreme Court’s decision is contrary to, or
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involves an unreasonable application of, clearly established federal law, as determined
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by the U.S. Supreme Court, or was based on an unreasonable determination of the
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facts in light of the evidence presented in the state court proceeding. 28 U.S.C. §
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2254(d). Respondents point out that this is because the state supreme court’s decision
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is not in fact contrary to or an unreasonable application of clearly established federal
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law (ECF No. 24, citing Carey v. Musladin, 549 U.S. 70, 74-77 (2006)). Accordingly,
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federal habeas relief is denied as to ground 1. The petition, therefore, is denied.2
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IV.
Certificate of Appealability
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This is a final order adverse to the petitioner. As such, Rule 11 of the Rules
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Governing Section 2254 Cases requires this court to issue or deny a certificate of
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appealability (COA). Accordingly, the court has sua sponte evaluated the claims within
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the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.
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Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has
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made a substantial showing of the denial of a constitutional right." With respect to
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claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists
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would find the district court's assessment of the constitutional claims debatable or
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wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
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The court notes that Lister filed a traverse in which he asserts that the state district court broke a verbal
contract with him when it refused to acknowledge that Lister had provided substantial informant
assistance to federal agents (ECF No. 30). Respondents are correct that the traverse improperly
attempts to raise a new claim and that in any event such new claim is unexhausted and belied by the
record (ECF No. 31; Exhs. 23, 47).
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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 Lister’s 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 Lister’s claims.
V.
Conclusion
IT IS THEREFORE ORDERED that the petition (ECF No. 7) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.
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DATED: 29 March 2016.
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ROBERT C. JONES
UNITED STATES DISTRICT COURT
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