Tompkins v. Baca et al

Filing 53

ORDER denying the ECF No. 21 Second Amended Petition for Writ of Habeas Corpus; denying a certificate of appealability; directing Clerk to enter judgment accordingly. Signed by Judge Miranda M. Du on 6/20/2019. (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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VALLIER WILLIAM TOMPKINS,
Petitioner,

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Case No. 3:16-cv-00444-MMD-WGC
ORDER

v.

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WARDEN BACA, et al.,
Respondents.

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I.

INTRODUCTION

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This habeas corpus action, brought by Petitioner Vallier William Tompkins, is

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before the Court for resolution of the claims remaining in Tompkins’s second amended

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habeas petition. The Court will deny Tompkins’s habeas petition, will deny him a

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certificate of appealability, and will direct the Clerk of the Court to enter judgment

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accordingly.

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II.

BACKGROUND

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On July 3, 2012, Tompkins was charged by complaint in a Reno justice court with

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three counts of sexual assault, one count of battery with intent to commit sexual assault,

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and one count of burglary. (Criminal Complaint, Ex. 15 (ECF No. 22-15).) The justice

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court ordered a competency evaluation. (Order for Competency Evaluations, Ex. 16 (ECF

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No. 22-16).) Two competency evaluation reports concluded that Tompkins was

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competent to stand trial, and the state district court made a finding to that effect.

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(Competency Evaluation, Ex. 17 (ECF No. 22-17); Competency Evaluation, Ex. 19 (ECF

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No. 22-19); Order of Competency and Returning Matter to Justice Court, Ex. 21 (ECF No.

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22-21).) Tompkins waived the preliminary hearing. (Waiver of Preliminary Examination,

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Ex. 24 (ECF No. 22-24).) On September 13, 2012, the State charged Tompkins by

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information with three counts of sexual assault. (Information, Ex. 23 (ECF No. 22-23).)

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Tompkins was arraigned on September 20, 2012, and he pled guilty to each of the three

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sexual assault charges. (Transcript of Arraignment, Ex. 25 (ECF No. 22-25); see also

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Guilty Plea Memorandum, Ex. 26 (ECF No. 22-26).) On October 25, 2012, the court

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sentenced Tompkins to three consecutive terms of ten years to life in prison (with the first

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term running concurrent with a sentence imposed in a separate case). (Transcript of

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Sentencing, Ex. 30 (ECF No. 23-4).) The judgment of conviction was filed on October 30,

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2012. (Judgment, Ex. 31 (ECF No. 23-5).) Tompkins did not appeal from the judgment of

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conviction.

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On July 11, 2013, Tompkins filed a petition for writ of habeas corpus in the state

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district court. (Petition for Writ of Habeas Corpus, Ex. 39 (ECF No. 23-13).) The court

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appointed counsel for Tompkins. (See Order Granting in Forma Pauperis and

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Appointment of Counsel, Ex. 41 (ECF No. 23-15); Recommendation and Order for

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Appointment of Counsel, Ex. 42 (ECF No. 23-16).) On May 27, 2015, the state district

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court granted the State’s motion to dismiss, and dismissed the petition, determining that

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the record showed each of Tompkins’ claims to be meritless. (Order Dismissing Petition

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for Writ of Habeas Corpus, Ex. 63 (ECF No. 24-19).) Tompkins appealed, and the Nevada

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Court of Appeals affirmed on February 17, 2016. (Order of Affirmance, Ex. 77 (ECF No.

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24-33).) The remittitur issued on March 15, 2016. (See Remittitur, Ex. 78 (ECF No. 24-

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34).)

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This Court received a pro se petition for writ of habeas corpus from Tompkins,

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initiating this action, on July 26, 2016 (ECF No. 4). The Court appointed counsel, and,

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with counsel, Tompkins filed a first amended habeas petition on August 3, 2016. (Order

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entered July 27, 2016 (ECF No. 3); First Amended Petition for Writ of Habeas Corpus

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(ECF No. 7).)

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On June 19, 2017, Tompkins filed a second amended petition for writ of habeas
corpus—now his operative petition—asserting the following claims:
Ground 1: “Tompkins’ guilty plea was not entered into knowingly,
intelligently, or voluntarily,” in violation of his federal constitutional rights.

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Ground 2: “Tompkins was denied his right to the effective assistance of
counsel,” in violation of his federal constitutional rights.

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Ground 2(1): “Trial counsel failed to advise Tompkins of his right to
appeal.”

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Ground 2(2): “Trial counsel failed to adequately investigate.”

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Ground 2(3): “Trial counsel failed to explain the nature and
consequences of the guilty plea to Tompkins.”

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Ground 2(4): “Trial counsel had a conflict of interest in representing
Tompkins.”

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Ground 2(5): “Trial counsel failed to object to highly prejudicial victim
impact evidence.”

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Ground 3: “Improper victim impact evidence was admitted against
Tompkins at his sentencing hearing,” in violation of his federal constitutional
rights.

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Ground 4: “The cumulative effect of the errors in this case deprived
Tompkins of his right to due process,” in violation of his federal constitutional
rights.

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(Second Amended Petition for Writ of Habeas Corpus (ECF No. 21).)

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On August 18, 2017, Respondents filed a motion to dismiss (ECF No. 30).

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Tompkins filed an opposition to the motion to dismiss on November 8, 2017 (ECF No.

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36). On November 21, 2017, Tompkins filed a declaration (ECF No. 39) stating that he

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abandons Ground 2(2) of his second amended petition—his claim that his trial counsel

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was ineffective for not properly investigating the case. Respondents filed a reply in

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support of the motion to dismiss on December 15, 2017 (ECF No. 40). The Court ruled

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on the motion to dismiss on March 8, 2018 (ECF No. 41). The Court dismissed Ground

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2(2). With respect to the part of Ground 1 found to be unexhausted—all of Ground 1

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except Tompkins’s claims that that his plea was not knowing, intelligent, and voluntary

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because the trial court did not advise him of his right to appeal or the possibility of a plea

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under North Carolina v. Alford, 400 U.S. 25 (1970)—the Court required Tompkins to file

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either a notice stating that he abandons the unexhausted claims or a motion for a stay

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while he exhausts the claims in state court. In all other respects, the Court denied the

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motion to dismiss.

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On April 30, 2018, Tompkins filed a notice stating that he abandons the
unexhausted portion of Ground 1 (ECF Nos.44, 45).

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On August 9, 2018, Respondents filed an answer (ECF No. 48), responding to

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Tompkins’s remaining claims. On November 19, 2018, Tompkins filed a reply to the

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answer (ECF No. 51).

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III.

DISCUSSION

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A.

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

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habeas corpus cases under the 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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Standard of Review

(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.
28 U.S.C. § 2254(d).

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A state court decision is contrary to clearly established Supreme Court precedent,

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

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

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a set of facts that are materially indistinguishable from a decision of [the Supreme Court]

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and nevertheless arrives at a result different from [the Supreme Court’s] precedent.”

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Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362,

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405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

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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 U.S.

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at 75 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires

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

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application of clearly established law must be objectively unreasonable. Id. (quoting

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Williams, 529 U.S. at 409).

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The Supreme Court has instructed that “[a] state court’s determination that a claim

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lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

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on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

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(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court

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has stated “that even a strong case for relief does not mean the state court’s contrary

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conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen

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v. Pinholster, 563 U.S. 170, 181 (2011) (describing standard as “a difficult to meet” and

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“highly deferential standard for evaluating state-court rulings, which demands that state-

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court decisions be given the benefit of the doubt” (internal quotation marks and citations

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omitted)).

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B.

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In Ground 1, Tompkins claims that, in violation of his federal constitutional rights,

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his guilty plea was not entered into knowingly, intelligently and voluntarily. (See Second

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Amended Petition (ECF No. 21) at 6-8.) In the order entered March 8, 2018, resolving the

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motion to dismiss, the Court found that Ground 1 is unexhausted in state court, except

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for the claims that Tompkins’s plea was not knowing, intelligent, and voluntary because

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the trial court did not advise him of his right to appeal or the possibility of a plea under

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North Carolina v. Alford, 400 U.S. 25 (1970). (See Order entered March 8, 2018 (ECF

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No. 41) at 4-5.) Tompkins subsequently abandoned the unexhausted parts of Ground 1.

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(Notice to Court of Petitioner’s Formal Declaration of Abandonment (ECF No. 44);

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Petitioner’s Declaration of Abandonment (ECF No. 45).)

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Ground 1

In Tompkins’s state habeas action, the district court denied Tompkins relief, ruling
as follows on these claims:
The Petition argues the Court did not advise the Petitioner of his right
to appeal, and he did not knowingly intelligently, or voluntarily waive his right
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to appeal. The Petitioner executed a guilty plea memorandum (“the Plea
Memorandum”) on September 21, 2012, in which the Petitioner affirmed
that he offered his plea freely, voluntarily and knowingly. The Plea
Memorandum also included the agreement the Petitioner understood he
had the right to appeal from adverse rulings on pretrial motions only if the
State and the Court consented to that right to appeal. This demonstrates
the Petitioner was advised of his appeal rights prior to sentencing.
NRS 177.075(2) provides when a court imposes sentence upon a
defendant who has not pleaded guilty and is without counsel the court shall
advise the defendant of his right to appeal. NRS 177.075(2) has no
application to the present case because the Petitioner plead guilty and was
represented by counsel during the plea negotiations. It is the duty of counsel
in certain, not all, circumstances to advise a defendant who pleads guilty to
the right of appeal. Thomas v. State, [979 P.2d 222, 223-24 (Nev. 1999)].
The Petition does not contend this is an ineffective assistance of counsel
claim.

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The Petition cites no statutory or case authorities in Nevada that
obligate a court to inform an individual who pleads guilty to his right to
appeal during sentencing. The Opposition also did not provide any authority
in support or explanation of the argument. The Court need not consider an
issue which is not meaningfully briefed. Badillo v. Am. Brands, [16 P.3d 435,
440 (Nev. 2001)]; see also, DCR 13(3); Edwards v. Emperor’s Gardens
Rest., [130 P.3d 1280, 1288 n.38 (Nev. 2006)] (declining to consider claims
not cogently argued or supported with relevant authority).

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The Petitioner pleaded guilty. There is no reason in the record as to
why the Petitioner should have been canvassed regarding the meaning of
the Alford Plea. The Opposition did not provide information or argument why
the Petitioner should have been canvassed about the Alford Plea. As
discussed above, the Court need not consider an issue which is not
meaningfully briefed. Badillo, [16 P.3d at 440].

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(Order Dismissing Petition for Writ of Habeas Corpus, Ex. 63 at 5-6 (ECF No. 24-19 at 6-

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7).) And, on Tompkins’s appeal in that case, the Nevada Court of Appeals ruled as

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follows:

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In his petition, Tompkins alleged his counsel was ineffective for
failing to permit him to testify before the justice court because he could have
pursued an insanity defense based upon being awake for 20 straight days
and for having a conflict of interest because a parent of the victim allegedly
worked at the public defender’s office. Tompkins also alleged he was not
advised of his right to pursue a direct appeal, the district court erred by
considering prejudicial letters from the victims in this matter, and his guilty
plea was not entered knowingly and voluntarily because the meaning of an
Alford plea was not explained to him. [Footnote: North Carolina v. Alford,
400 U.S. 25 (1970).] Tompkins also asserted the guilty plea agreement did
not contain a certificate of counsel as required by NRS 174.063.
Here, the district court reviewed the parties’ pleadings and made the
following findings: Tompkins waived his right to a preliminary hearing, and
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therefore, Tompkins’ claim regarding testifying at that hearing was belied by
the record. The victim’s family member actually worked for the Washoe
County District Attorney’s Office, not the public defender’s office, and
therefore, Tompkins’ claim regarding a conflict of interest was belied by the
record. Tompkins was advised of his right to pursue a direct appeal and
Tompkins did not demonstrate any further duty existed to inform him
regarding an appeal. NRS 176.015(3) permitted the district court to consider
the victim impact letters during the sentencing hearing. [Footnote: We also
note Tompkins’ claim regarding the district court’s consideration of victim
impact letters at the sentencing hearing is not properly raised in a
postconviction petition for a writ of habeas corpus stemming from a guilty
plea. See NRS 34.810(1)(a). Nevertheless, the district court properly denied
relief for this claim. See Wyatt v. State, [468 P.2d 338, 341 (Nev. 1970).]
Tompkins entered a standard guilty plea, and Tompkins did not
demonstrate there was any duty to explain an Alford plea to him. Tompkins
did not demonstrate manifest injustice sufficient to warrant setting aside his
guilty plea. Based on those findings, the district court concluded all of
Tompkins’ claims were either belied by the record or were not supported by
sufficient specific facts which would entitle Tompkins to relief if true.
Accordingly, the district court declined to conduct an evidentiary hearing
and dismissed the petition. See Rubio, [194 P.3d at 1233-34 & n.53].
On appeal, Tompkins lists the claims he raised below and the
conclusions of the district court. However, [Tompkins] does not identify any
errors he believes the district court made in its conclusions. See Maresca
v. State, [748 P.2d 3, 6 (Nev. 1987)] (explaining it is the appellant’s
responsibility to present relevant authority and cogent argument). Our
review reveals the record supports the district court’s decision to dismiss
the petition without conducting an evidentiary hearing and Tompkins has
not demonstrated the district court abused its discretion in this regard.
(Order of Affirmance, Ex. 77 at 1-3 (ECF No. 24-33 at 2-4).)

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This Court determines that the remaining claims in Ground 1 are meritless, and

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that the state court’s denial of relief on the claims was reasonable. The federal

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constitutional guarantee of due process of law requires that a guilty plea be knowing,

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intelligent, and voluntary. See Brady v. United States, 397 U.S. 742, 748 (1970); Boykin

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v. Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado-Ramos, 635 F.3d 1237,

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1239 (9th Cir. 2011). “The voluntariness of [a petitioner’s] guilty plea can be determined

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only by considering all of the relevant circumstances surrounding it.” Brady, 397 U.S. at

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749. Those circumstances include “the subjective state of mind of the defendant . . . .”

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Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). Addressing the “standard as to the

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voluntariness of guilty pleas,” the Supreme Court has stated:

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(A) plea of guilty entered by one fully aware of the direct consequences,
including the actual value of any commitments made to him by the court,
prosecutor, or his own counsel, must stand unless induced by threats (or
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promises to discontinue improper harassment), misrepresentation
(including unfulfilled or unfulfillable promises), or perhaps by promises that
are by their nature improper as having no proper relationship to the
prosecutor’s business (e.g. bribes).

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Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir.

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1957) (en banc), rev’d on other grounds, 356 U.S. 26 (1958)); see also Alford, 400 U.S.

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at 31 (noting that the “longstanding test for determining the validity of a guilty plea is

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‘whether the plea represents a voluntary and intelligent choice among the alternative

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courses of action open to the defendant.’”).

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In Blackledge v. Allison, the Supreme Court addressed the evidentiary weight of

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the record of a plea proceeding when the plea is subsequently subject to a collateral

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challenge. While noting that the defendant’s representations at the time of his guilty plea

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are not “invariably insurmountable” when challenging the voluntariness of his plea, the

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Court stated that, nonetheless, the defendant’s representations, as well as any findings

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made by the judge accepting the plea, “constitute a formidable barrier in any subsequent

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collateral proceedings” and that “[s]olemn declarations in open court carry a strong

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presumption of verity.” 431 U.S. 63, 74 (1977); see also Muth v. Fondren, 676 F.3d 815,

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821 (9th Cir. 2012); Little v. Crawford, 449 F.3d 1075, 1081 (9th Cir. 2006).

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Here, the Nevada appellate court accurately noted that Tompkins was in fact

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informed of his right to appeal. (Guilty Plea Memorandum, Ex. 26 at 3 (ECF No. 23 at 4);

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see also id. at 6 (ECF No. 23 at 7) (“My attorney has advised me that if I wish to appeal,

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any appeal, if applicable to my case, must be filed within thirty days of my sentence and/or

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judgment.”).) And, the state court reasonably determined that, under the circumstances,

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there was no requirement that Tompkins be notified of the nature of an Alford plea.

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Furthermore, Tompkins has not shown that notification regarding the right to appeal and

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the nature of an Alford plea had any bearing on the knowing, intelligent, and voluntary

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character of his guilty plea. The state court’s ruling on this claim was not contrary to, or

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an unreasonable application of, clearly established federal law, as determined by the

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Supreme Court, and was not based on an unreasonable determination of the facts in light

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of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Tompkins habeas corpus

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relief with respect to Ground 1.

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C.

Ground 2

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In Ground 2, Tompkins claims that, in violation of his federal constitutional rights,

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he was denied his right to the effective assistance of counsel. (Second Amended Petition

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(ECF No. 21) at 8-14.) There are four sub-claims remaining in Ground 2. In Ground 2(1),

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Tompkins claims that his trial counsel failed to advise him of his right to appeal. (Id. at 9.)

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In Ground 2(3), Tompkins claims that his trial counsel failed to explain to him the nature

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and consequences of the guilty plea. (Id. at 11-13.) In Ground 2(4), Tompkins claims that

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his trial counsel had a conflict of interest in representing him. (Id. at 13-14.) And, in Ground

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2(5), Tompkins claims that his trial counsel failed to object to highly prejudicial victim

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impact evidence. (Id. at 14.)

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Tompkins raised these remaining claims on the appeal in his state habeas action,

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and the Nevada Court of Appeals affirmed the denial of relief on the claims. (ECF No. 24-

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33 at 2-4 (Order of Affirmance) (relevant portion quoted in full, above).) The Court finds

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that the ruling of the Nevada Court of Appeals was reasonable.

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In Strickland v. Washington, the Supreme Court propounded a two prong test for

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analysis of claims of ineffective assistance of counsel: the petitioner must demonstrate

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(1) that the attorney’s representation “fell below an objective standard of reasonableness,”

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and (2) that the attorney’s deficient performance prejudiced the defendant such that “there

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is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court

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considering a claim of ineffective assistance of counsel must apply a “strong presumption”

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that counsel’s representation was within the “wide range” of reasonable professional

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assistance. Id. at 689. The petitioner’s burden is to show “that counsel made errors so

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serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

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the Sixth Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not

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enough for the habeas petitioner “to show that the errors had some conceivable effect on

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the outcome of the proceeding.” Id. at 693. When the ineffective assistance of counsel

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claim is based on a challenge to a guilty plea, the Strickland prejudice prong requires the

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petitioner to demonstrate “that there is a reasonable probability that, but for counsel’s

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errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v.

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Lockhart, 474 U.S. 52, 59 (1985). In analyzing a claim of ineffective assistance of counsel

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under Strickland, a court may first consider either the question of deficient performance

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or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the

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court need not consider the other. See Strickland, 466 U.S. at 697.

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Regarding Ground 2(1), again, the Nevada courts accurately determined that

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Tompkins was in fact informed of his right to appeal. (Guilty Plea Memorandum, Ex. 26

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at 3 (ECF No. 23 at 4); see also id. at 6 (ECF No. 23 at 7) (“My attorney has advised me

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that if I wish to appeal, any appeal, if applicable to my case, must be filed within thirty

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days of my sentence and/or judgment.”).) Moreover, Tompkins has not identified, with

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any specificity, any meritorious issue that he would have raised on a direct appeal

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following his guilty plea and the entry of the criminal judgment. (Reply (ECF No. 51) at 5-

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9.)

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Regarding Ground 2(4), the Nevada court reasonably determined that Tompkins’s

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trial counsel did not have a conflict of interest. The most Tompkins shows in this regard

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is that his counsel “knew” the victim’s father, who was apparently an employee of the

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district attorney; it was not unreasonable for the state court to conclude that this fell short

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of establishing a conflict of interest resulting in ineffective assistance of counsel.

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Regarding Ground 2(5), as is discussed below with respect to Ground 3, the state

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appellate court determined that the admission of victim impact evidence at Tompkins’s

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sentencing did not violate state law, and Tompkins has made no showing that it violated

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his federal constitutional rights; therefore, Tompkins’s counsel was not ineffective for not

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objecting to the admission of that evidence, and Tompkins was not prejudiced by his

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counsel not objecting.

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Ground 2(3) is a general claim that “[t]rial counsel failed to explain the nature and

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consequences of the guilty plea to Tompkins.” (Second Amended Petition (ECF No. 21)

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at 11-13.) Considering the plea agreement (ECF No. 11), the transcript of the arraignment

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and change of plea (ECF No. 10), the transcript of the sentencing (ECF No. 12), and all

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the other exhibits in this case, and as stated elsewhere in this order regarding Tompkins’s

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more specific claims, the Court determines that the Nevada Court of Appeals was not

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unreasonable in ruling that Tompkins’s trial counsel was not ineffective with respect to

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explaining the guilty plea to Tompkins, and that Tompkins’s guilty pleas was, as a result,

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knowing, intelligent, and voluntary.

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This Court, then, finds that the Nevada appellate court’s rulings on Tompkins’s

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ineffective assistance of counsel claims were not contrary to, or an unreasonable

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application of, clearly established federal law, as determined by the Supreme Court, and

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were not based on an unreasonable determination of the facts in light of the evidence.

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See 28 U.S.C. § 2254(d). The Court will deny Tompkins habeas corpus relief with respect

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to Grounds 2(1), 2(3), 2(4) and 2(5).

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D.

Ground 3

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In Ground 3, Tompkins claims that improper victim impact evidence was admitted

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at his sentencing hearing, in violation of his federal constitutional rights. (Second

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Amended Petition (ECF No. 21) at 15.)

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On the appeal in Tompkins’s state habeas action, the Nevada Court of Appeals

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ruled that “NRS 176.015(3) permitted the district court to consider the victim impact letters

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during the sentencing hearing.” (ECF No. 24-33 at 2 (Order of Affirmance).)

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To the extent that the Nevada Court of Appeals ruled that Nevada law allowed the

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admission of the victim impact evidence, that ruling is a state court’s construction of state

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law, is authoritative, and is not subject to review in this federal habeas corpus action. See

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Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Bonin v. Calderon, 59 F.3d 815, 841 (9th

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Cir. 1995). Beyond that, the admission of evidence in a criminal case does not provide a

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basis for habeas relief unless it rendered the proceeding fundamentally unfair in violation

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of the petitioner’s right to due process of law. See Johnson v. Sublett, 63 F.3d 926, 930

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(9th Cir. 1995) (citing Estelle, 502 U.S. at 67). Federal courts review such alleged due

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process violations for whether the admission of evidence “so infected the entire trial that

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the resulting conviction violates due process.” Estelle, 502 U.S. at 72. A habeas petitioner

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“bears a heavy burden in showing a due process violation based on an evidentiary

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decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.), as amended on reh’g, 421

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F.3d 1154 (9th Cir. 2005). The Nevada Court of Appeals did not discuss Tompkins’s claim

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that the admission of the victim impact evidence violated his federal constitutional rights,

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but it plainly was not unreasonable for that court to determine that it did not.

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The state court’s ruling on this claim was not contrary to, or an unreasonable

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application of, clearly established federal law, as determined by the Supreme Court, and

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was not based on an unreasonable determination of the facts in light of the evidence. See

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28 U.S.C. § 2254(d). The Court will deny Tompkins habeas corpus relief with respect to

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Ground 3.

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E.

Ground 4

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Finally, in Ground 4, Tompkins claims that the cumulative effect of the errors in his

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case deprived him of his federal constitutional right to due process of law. (Second

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Amended Petition (ECF No. 21) at 15-16.) As is discussed above, the Court finds no error;

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therefore, there are not multiple errors to consider cumulatively, and Ground 4 fails. The

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Court will deny Tompkins habeas corpus relief on Ground 4.

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IV.

CERTIFICATE OF APPEALABILITY

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The standard for the issuance of a certificate of appealability requires a “substantial

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showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The Supreme Court

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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.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,

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1077-79 (9th Cir. 2000).
Applying this standard, the Court finds that a certificate of appealability is

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unwarranted in this case. The Court will deny Tompkins a certificate of appealability.

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V.

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CONCLUSION
It is therefore ordered that the Second Amended Petition for Writ of Habeas Corpus

(ECF No. 21) is denied.

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It is further ordered that Petitioner is denied a certificate of appealability.

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It is further ordered that the Clerk of the Court is directed to enter judgment

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accordingly.
DATED THIS 20th day of June 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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