Stidham v. Wickham et al
Filing
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ORDERED that the petition (ECF No. 9 ) is DENIED. A certificate of appealability is DENIED. Clerk shall enter judgment and close this case. Signed by Judge Howard D. McKibben on 10/17/2019. (Copies have been distributed pursuant to the NEF - DRM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JASON EDWARD STIDHAM,
Case No. 3:17-cv-00500-HDM-WGC
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Petitioner,
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HAROLD WICKHAM, et al.,
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Respondents.
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Jason Edward Stidham’s pro se 28 U.S.C. § 2254 petition for writ of habeas
corpus is before the court for final disposition on the merits (ECF No. 9).
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I.
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Procedural History and Background
Stidham challenges his guilty plea to attempted burglary, burglary, possession of a
stolen motor vehicle, and possession of stolen property (exhibit 8).1 The state district
court sentenced Stidham to a term of 24 to 60 months each on the attempted burglary
and possession of stolen vehicle counts, and 48 to 60 months on the burglary count, all
to run concurrently, with a consecutive 48 to 60 months on the possession of stolen
property count. Exh. 28.
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ORDER
v.
Stidham did not file a direct appeal. He filed a state postconviction petition. Exhs.
33, 41. The state district court dismissed 4 grounds and conducted an evidentiary
hearing on the remaining claim—whether Stidham was deprived of his right to appeal
under Lozada v. State, 871 P.2d 944 (Nev. 1994). Thereafter, the court dismissed the
petition, and the Nevada Court of Appeals affirmed. Exhs. 65, 85.
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Exhibits referenced in this order are exhibits to respondents’ answer, ECF No. 15, and are found at ECF Nos.
16-18.
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Stidham’s federal petition sets forth 5 grounds for relief (ECF No. 9). Respondents
have answered the petition, and Stidham replied (ECF Nos. 15, 22).
II.
Legal Standards
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a. AEDPA Standard of Review
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 ¯
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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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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, 102 (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, 181 (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, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,
405-06 (2000), and citing Bell, 535 U.S. at 694.
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.” Lockyer, 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
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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.
b. Ineffective Assistance of Counsel
Stidham’s petition alleges ineffective assistance of counsel (IAC). IAC claims are
governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668
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(1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective
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assistance of counsel has the burden of demonstrating that (1) the attorney made errors
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so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth
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Amendment, and (2) that the deficient performance prejudiced the defense. Williams,
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529 U.S. at 390-91 (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the
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defendant must show that counsel’s representation fell below an objective standard of
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reasonableness. Id. To establish prejudice, the defendant must show that there is a
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reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different. Id. A reasonable probability is “probability
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sufficient to undermine confidence in the outcome.” Id. Additionally, any review of the
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attorney’s performance must be “highly deferential” and must adopt counsel’s
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perspective at the time of the challenged conduct, in order to avoid the distorting effects
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of hindsight. Strickland, 466 U.S. at 689. It is the petitioner’s burden to ov ercome the
presumption that counsel’s actions might be considered sound trial strategy. Id.
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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
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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
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guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that
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there is a reasonable probability that, but for counsel’s errors, he would not have
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pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
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59 (1985).
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If the state court has already rejected an ineffective assistance claim, a federal
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habeas court may only grant relief if that decision was contrary to, or an unreasonable
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application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
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There is a strong presumption that counsel’s conduct falls within the wide range of
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reasonable professional assistance. Id.
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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.”
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Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
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The Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s
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performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403 (internal
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citations omitted). Moreover, federal habeas review of an ineffective assistance of
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counsel claim is limited to the record before the state court that adjudicated the claim on
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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
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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 123. The Strickland standard is a
general one, so the range of reasonable applications is substantial. 556
U.S. at 124. 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.
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Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of
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counsel must apply a ‘strong presumption’ that counsel’s representation was within the
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‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466
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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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Stidham pleaded guilty upon the advice of counsel, thus he “may only attack the
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voluntary and intelligent character of the guilty plea by showing that the advice he
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received from counsel was [ineffective] . . . . and that there is a reasonable probability
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that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
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on going to trial.” Hill v. Lockhart, 474 U.S. 52, 56-57, 59 (1985); Lambert v. Blodgett,
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393 F.3d 943, 980-981 (9th Cir. 2004).
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III.
Instant Petition
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Ground 1
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Stidham contends that his plea counsel failed to advise him of his right to appeal
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(ECF No. 9, pp. 3-4). Generally, counsel has a constitutionally imposed duty to consult
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with a defendant about an appeal when he or she has reason think that either (1) a
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rational defendant would want to appeal; or (2) this particular defendant reasonably
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demonstrated that he or she is interested in appealing. Roe v. Flores-Ortega, 528 U.S.
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470, 480 (2000).
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Here, Stidham’s guilty plea agreement stipulated to a combined term of 5 to 15
years. Exh. 8. The agreement expressly provided that the State was free to withdraw
from the agreement or to argue for an appropriate sentence if Stidham failed to appear
at any scheduled proceeding or if prior to sentencing Stidham was arrested or if
Stidham misrepresented his criminal history.
After Stidham failed to appear for his presentence interview or his initial sentencing
hearing the district court issued a bench warrant. Exh. 22, p. 3; exhs. 14, 15. Stidham
was arrested on new charges in Oregon and extradited to Nevada; thereafter, the state
district court sentenced him to a combined term of 8 to 20 years. Exh. 27.
Stidham testified at the evidentiary hearing on his state postconviction claim of IAC
for his plea counsel’s failure to file a notice of appeal. Exh. 61, pp. 3-15. He said that at
the end of the sentencing hearing, “I was just concerned about, if there was anything I
could do. And I was informed that there wasn’t, because it came from a guilty plea, and
in the guilty plea I didn’t follow by with the guilty plea, was – what I was supposed to do,
I didn’t follow with what I was supposed to do through the guilty plea, so there wasn’t
really anything I could do.” Id. at 7. He said he had “no idea at all” that he had a rig ht to
appeal. Id. His postconviction counsel showed him a letter dated the same day as the
sentencing from his plea lawyer regarding appeal rights and he said he had never
received the letter. Stidham testified that he first learned from another inmate that he
could have filed an appeal a couple of months after he was sentenced and that he
“absolutely” would have appealed if he had known that was an option. On cross
examination, Stidham explained that he was overwhelmed by the significantly longer
sentence he received than was stipulated to in the plea agreement, but that once his
counsel reminded him that he had violated the terms of the agreement it made more
sense.
Stidham’s plea counsel testified. Id. at 16-22. He agreed that Stidham’s recounting
of the conversation they had after sentencing was a “fair representation” of the
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conversation but also said it was not exhaustive of the discussions they had with
respect to appellate rights. Counsel stated that after sentencing Stidham called him
from jail. Counsel explained that Stidham’s appellate rights in the context of a guilty
plea were very limited and that the court had sentenced him within the statutory
parameters. They discussed that counsel did not see any viable bases for appeal.
Counsel testified that Stidham did not give him any indication that he wished to appeal
and that if he had counsel would have immediately filed a notice of appeal. He also
said that he sent Stidham the letter describing his appellate rights on the day of
sentencing. Counsel finally noted that he had known and worked with Stidham for
about 10 years on various other criminal matters.
The state district court found that Stidham’s counsel testified credibly that after
sentencing he sent Stidham a letter and also had a telephone conversation with
Stidham about his rights. Exh. 65, p. 3. The court also explained that it did not find
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any credible testimony indicating that Stidham specifically instructed
trial counsel to fiIe a direct appeal. Notably, counsel testified that he was
fully cognizant of his obligations under Lozada to file an appeal, but did
not have any indication, after his telephone conversation with Stidham,
that Stidham wished him to do so. While Stidham may have expressed
disappointment in the length of his sentence, the court does not find that
this general disappointment rose to a level sufficient to cause counsel to
file an appeal.
Id. at 4.
Affirming the dismissal of this claim, the Nevada Court of Appeals explained:
Stidham failed to demonstrate he was deprived of a direct appeal.
“[T]rial counsel has a constitutional duty to file a direct appeal in two
circumstances: when requested to do so and when the defendant
expresses dissatisfaction with his conviction.” Toston v. State, 267 P.3d
795, 800 (Nev. 2011). At the evidentiary hearing, Stidham's counsel
testified he mailed a letter to Stidham and had a telephone conversation
with Stidham where he explained Stidham's appellate rights. Counsel
testified he would have pursued a direct appeal had Stidham asked him to
do so. The district court concluded counsel was credible, Stidham’s
evidence attempting to demonstrate counsel had not explained a direct
appeal was not credible, and Stidham’s claim lacked merit. The district
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court further concluded Stidham did not otherwise express the type of
dissatisfaction with his conviction that would have required counsel to file
a notice of appeal. See id. at 801 (explaining the defendant has the
burden to indicate his desire to pursue a direct appeal). Our rev iew of the
record reveals the district court's conclusions are supported by substantial
evidence. Therefore, we conclude the district court did not err in denying
this claim.
Exh. 83, p. 2. Stidham’s counsel testified that he had a 10-year relationship with
Stidham and would have filed an appeal if Stidham had indicated that that was his
desire. Stidham testified that he was never told he could appeal; the state district court
found his testimony not credible. Stidham has failed to demonstrate that the Nevada
Court of Appeal’s decision was contrary to or involved an unreasonable application of
Strickland. 28 U.S.C. § 2254(d). Federal habeas relief is denied as to ground 1.
Ground 2
Stidham argues that his counsel failed to investigate his mental health and have a
psychiatric evaluation completed (ECF No. 9, p. 6). He had attempted suicide about
two and one-half months before entering into the guilty plea agreement and asserts that
that due to his mental health issues and drug addiction/withdrawal he did not knowingly
and voluntarily enter his guilty plea. He alleges that he told his counsel he was “not
thinking correctly” before his plea hearing.
The state-court record reflects a detailed plea canvass. Exh. 7. Stidham indicated
that he was not under the influence of any substance that prevented him from
understanding the proceedings, that he had read and discussed the plea ag reement in
this case and a second case with his counsel, that he understood the agreements and
agreed to be bound by them. He stated that he understood that the court w as not
bound by the recommendation/stipulation of 5 to 15 years and might give him a different
sentence.
The state district court dismissed this claim, finding that Stidham made no specific
factual allegations regarding what evidence or testimony he would present to
demonstrate that he was not competent at the time he entered his plea. Exh. 46, p. 2.
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The court further observed that Stidham did not allege that he lacked the present ability
to consult with his counsel or that he lacked a rational or factual understanding of the
proceedings against him.
The Nevada Court of Appeals also rejected this claim:
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Stidham asserted he suffered from mental difficulties, used prescription
medication, and attempted to commit suicide prior to entry of his guilty
plea, and these issues may have caused him to be incompetent when he
entered his guilty plea. Stidham failed to demonstrate his counsel’s
performance was deficient or resulting prejudice. Stidham did not provide
evidence to support an assertion he was incompetent when he entered his
plea because he failed to show he did not have the ability to consult with
his attorney with a reasonable degree of rational understanding and that
he did not have a rational and factual understanding of the proceedings
against him when he entered his guilty plea. See Melchor-Gloria v. State,
99 Nev. 174, 179-80, 660 P.2d 109, 113 (1983). Because Stidham failed
to demonstrate he could have met the legal standard of incompetency, he
did not demonstrate his counsel acted in an objectively unreasonable
manner regarding this issue or a reasonable probability of a different
outcome had counsel investigated his mental health or sought a
psychiatric evaluation. Therefore, we conclude the district court did not err
in denying this claim without considering it at the evidentiary hearing. See
Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
Exh. 83, p. 3. Nothing in the record supports Stidham’s claim that he was not
competent to enter into the plea agreement. Stidham attached a few pages of medical
records to his federal petition (ECF No. 9, pp. 31-38). Respondents point out that these
documents were not part of the state-court record. In any event, the documents appear
to reflect minimal soft tissue injury to his neck from the suicide attempt and problems
tolerating pain medication for pancreatitis. While they reflect that Stidham was
apparently on suicide watch, they provide no information regarding Stidham’s
competency and ability to knowingly, intelligently, and voluntarily enter into a plea
agreement. Stidham has not shown that the Nevada Court of Appeal’s decision was
contrary to or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d).
Ground 2 is, therefore, denied.
Ground 3
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Stidham claims that counsel failed to object to the sentence structure and f ailed to
inform Stidham that the court could impose consecutive sentences and harsher
sentences than stipulated to in the plea agreement (ECF No. 9, p. 8).
The Nevada Court of Appeals affirmed the dismissal of this claim because in the
written plea agreement and during the plea canvass Stidham acknowledged both that
the court could impose consecutive sentences and that the court was not bound by the
parties’ stipulation as to sentencing. Exh. 83, pp. 3-4.
This claim is utterly belied by the record. The plea agreement itself clearly states
that if Stidham failed to appear for any subsequent court proceedings the State was free
to argue for an “appropriate sentence.” Exh. 8. Stidham then failed to appear, having
fled the jurisdiction. During the plea canvass, in fact, the court informed Stidham that it
was not bound to follow the recommendation and also specifically asked him: “Do you
recognize that these matters – the court could run these matters consecutively?”
Stidham stated that he understood. Exh. 7, pp. 12-13.
Stidham has not demonstrated that the Nevada Court of Appeal’s decision was
contrary to or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d).
Federal habeas relief is denied as to ground 3.
Ground 4
Stidham asserts that counsel failed to investigate and to present mitigating evidence
at his sentencing hearing (ECF No. 9, p. 10).
The state district court dismissed this claim finding that Stidham made only a general
allegation that he had a clean record prior to 2012 but f ailed to identify any witnesses or
specific factual evidence counsel should have presented. Exh. 45, p. 3.
The Nevada Court of Appeals held that Stidham failed to demonstrate deficiency or
prejudice.
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At the sentencing hearing, counsel advised the sentencing court
Stidham’s problems stemmed from his substance abuse issues but
explained Stidham performed weII when under supervision and he had not
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engaged in criminal activity for years prior to the events leading to these
charges. Under these circumstances, Stidham failed to demonstrate his
counsel's arguments at the sentencing hearing amounted to the actions of
objectively unreasonable counsel. In addition; Stidham did not identify any
character witnesses who would have provided favorable information, and
a bare claim is insufficient to demonstrate he is entitled to relief. See id.
[Hargrove v. State, 686 P.2d at 225]. Considering the sentencing
arguments and the information before the sentencing court, including
information demonstrating Stidham absconded from Nevada while he
awaited sentencing in this matter and was charged with committing
additional crimes during that time period, Stidham failed to demonstrate a
reasonable probability of a different outcome had counsel performed
different actions at the sentencing hearing. Therefore, we conclude the
district court did not err in denying this claim without considering it at the
evidentiary hearing. See id.
Exh. 83, p. 4. See also sentencing hearing, exh. 27. Simply put, after entering into a
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guilty plea for a stipulated sentence, Stidham left the jurisdiction and was charged with
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crimes in Oregon. The state district court then imposed a sentence longer than the
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stipulated sentence. He has not shown that the Nevada Court of Appeal’s decision that
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he failed to show deficiency or prejudice regarding his counsel’s presentation at
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sentencing was contrary to or involved an unreasonable application of Strickland. 28
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U.S.C. § 2254(d). Ground 4 is denied.
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Ground 5
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Stidham contends that he never received a copy of the presentence investigation
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report (PSI) and only received the supplemental PSI at the sentencing hearing (ECF
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No. 9, p. 12).
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At the outset of the sentencing hearing, Stidham’s counsel informed the court that he
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had only just received the supplemental PSIs and needed to review them with Stidham.
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Exh. 27, pp. 3-7. The court took a recess in order that Stidham and his lawyer could
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review the PSIs. The only correction counsel had was to correct Stidham’s birthdate on
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the reports.
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The state district court dismissed this claim, finding that Stidham did not identify any
other specific factual errors in the PSI. Exh. 46, p. 3.
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The Nevada Court of Appeals again concluded that Stidham failed to show
deficiency or prejudice:
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At the beginning of the sentencing hearing, counsel informed the
district court the defense had just received the PSI, had not had time to
review it, and requested additional time to review and discuss the PSI.
The district court trailed the matter until later that day, and when the
matter was recalled, counsel informed the district court the defense had
been able to sufficiently review the PSI. Under these circumstances,
Stidham failed to demonstrate counsel's actions were objectively
unreasonable. Stidham also acknowledged the PSI did not contain any
errors which worked to his detriment. As the PSI did not contain any
prejudicial errors, Stidham failed to demonstrate a reasonable probability
of a different outcome had counsel ensured Stidham had further time to
review the PSI. Therefore, we conclude the district court did not err in
denying this claim without considering it at the evidentiary hearing.
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Exh. 83, p. 5. Stidham has not shown that the Nevada Court of Appeal’s decision
was contrary to or involved an unreasonable application of Strickland. 28 U.S.C. §
2254(d). Ground 5 is, therefore, denied.
Accordingly, the petition is denied in its entirety.
IV.
Certificate of Appealability
This is a final order adverse to the petitioner. As such, Rule 11 of the Rules
Governing Section 2254 Cases requires this court to issue or deny a certificate of
appealability (COA). Accordingly, the court has sua sponte evaluated the claims within
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).
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
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
U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
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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 Stidham’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 Stidham’s petition.
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V.
Conclusion
IT IS THEREFORE ORDERED that the petition (ECF No. 9) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment and close this case.
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October 17, 2019.
DATED: 16 October 2019
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HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE
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