Ball v. Baker

• Court: District Court, D. Nevada
• Decided: October 19, 2020
• Docket: 3:18-cv-00249
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 TERRY ANTHONY BALL, Case No. 3:18-cv-00249-MMD-WGC

7 Petitioner, ORDER v. 8 RENEE BAKER, et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner Terry Ball filed a petition for writ of habeas corpus under 28 U.S.C. § 13 2254. (ECF No. 5 (“Petition”).) This matter is before the Court for adjudication on the 14 merits of the remaining grounds in the Petition. For the reasons discussed below, the 15 Court denies the Petition and denies Petitioner a certificate of appealability. 16 II. BACKGROUND 17 Petitioner challenges his 2014 Nevada state conviction, pursuant to a guilty plea, 18 on three counts of robbery with use of a deadly weapon. (ECF No. 10-32.) In addition to 19 the three counts of robbery with use of a deadly weapon, Petitioner was also charged 20 with one count of being an ex-felon in possession of a firearm and one count of 21 possession of a short-barreled firearm. (ECF Nos. 10-4, 10-5, 10-7.) 22 At Petitioner’s preliminary hearing, the justice court found the State presented 23 sufficient evidence for Petitioner to be bound over to the Second Judicial District Court. 24 (ECF No. 10-8 at 119.)1 A witness, who was an employee of the Pyramid Kwik Serv gas 25

26 1The Court makes no credibility findings or other factual findings regarding the truth or falsity of evidence or statements of fact in the state court. The Court summarizes the 27 factual assertions as background to the issues presented in this case and does not summarize all material presented in the state court. No statement of fact made in 28 describing statements, testimony or other evidence in the state court constitutes a finding by the Court. Any absence of mention of a specific piece of evidence or category of 2 the gas station, walked to the back of the store, and approached the counter. (Id. at 25.) 3 The individual lifted his shirt up with his right hand to expose the black butt of a gun to the 4 employee. (Id. at 25-26, 31.) The individual stated he would shoot if the employee did not 5 give him the money. (Id. at 30.) The employee placed about $450 to $500 on the counter 6 for the individual. (Id. at 32-33.) As a witness, the employee identified Petitioner in open 7 court as the individual who robbed the gas station. (Id. at 29.) 8 Another witness testified that while she was working at the front desk at La Quinta 9 Inn located in Reno, Nevada on August 28, 2013, an individual approached her, pulled 10 his hooded sweatshirt up on the right side to expose a black revolver with a brown handle, 11 and instructed her to give him all of the money in the register. (Id. at 41-43.) The witness 12 opened the register and gave the money in the register to the individual. (Id. at 44.) The 13 witness identified Petitioner in open court as the individual who robbed La Quinta Inn. (Id. 14 at 46-47.) 15 A former employee of McCarran Mart located in Sparks, Nevada, and witness to a 16 robbery there on August 10, 2013, testified that a man lifted his shirt up to expose what 17 appeared to be the handle of a nine-millimeter gun and stated, “[g]ive me the money. 18 Don’t push no buttons.” (Id. at 92-95.) The former employee gave the individual the cash 19 and then called the police. (Id. at 96.) When the police presented the former employee 20 with photographs, the former employee did not identify Petitioner as the individual who 21 robbed McCarran Mart. (Id. at 98-99.) 22 On the night Petitioner was arrested, Petitioner was a passenger in a Ford 23 Expedition parked at Sundance Motor Lodge. (Id. at 62.) The vehicle was searched, and 24 detectives seized, inter alia, a shotgun that had a sawed-off barrel and two different 25 handguns. (Id. at 63, 67, 74-75.) A detective testified that one of the handguns was a 26 “revolver type pistol” he believed was a “pellet gun” with a “wood type grip.” (Id. at 75.) 27

28 evidence in this overview does not signify that the Court has overlooked the evidence in considering Petitioner’s claim. 2 gun, plastic, looks like a semiautomatic pistol” and “shoots plastic pellets.” (Id. at 75, 77.) 3 The detective further testified the two pistols were not firearms. (Id. at 77.) 4 Petitioner pled guilty to three counts of robbery with use of a deadly weapon 5 pursuant to the June 18, 2014 guilty plea agreement and plea colloquy. (ECF Nos. 10- 6 26, 10-27.) In exchange, the State agreed to: (A) dismiss charges in DA case number 13- 7 176753; (B) dismiss charges in DA case number 14-11984; (C) drop the charge of being 8 an ex-felon in possession of a firearm in the third-amended complaint; and (D) drop the 9 charge of possession of a short barreled shotgun in the third-amended complaint. (ECF 10 Nos. 10-25, 10-26 at 6-7, 10-27 at 5.) Petitioner was arraigned. The district court judge 11 had the counts, which substantially tracked the language of the amended information, 12 read aloud and asked Petitioner if Petitioner committed acts alleged in each count. (ECF 13 No. 10-26 at 10-11.) Petitioner affirmed he did. (Id. at 12.) The judgment of conviction 14 was filed on October 2, 2014. (ECF No. 10-32.) 15 Petitioner was sentenced on each count of robbery with a term of 24 months to 16 120 months for use of a deadly weapon, and a term of 24 months to 60 months for the 17 deadly weapon enhancement – all sentences to run consecutively. (ECF Nos. 10-31 at 18 28-29, 10-32.) Petitioner appealed and the Nevada Court of Appeals affirmed judgment 19 of conviction on October 18, 2015. (ECF No. 11-29.) Petitioner then filed a state habeas 20 petition, and the State filed a motion to dismiss the petition. The state district court granted 21 the State’s motion and found an evidentiary hearing was not warranted as Petitioner did 22 not establish prejudice. (ECF No. 12-20.) The Nevada Court of Appeals affirmed the 23 dismissal of the petition. (ECF No. 12-29.) 24 Petitioner dispatched his federal habeas petition on May 30, 2018 and filed it on 25 July 3, 2018. (ECF Nos. 1, 5.) The Court granted Respondents’ motion to dismiss (ECF 26 No. 9), in part, finding Grounds 1 and 3 as noncognizable in federal habeas and denied, 27 in part, as to Ground 2. (ECF No. 15.) In the two remaining grounds, Petitioner asserts 28 /// 2 federal constitutional rights: 3 Ground 2: Petitioner’s trial counsel failed to advise Petitioner that proof of the guns’ actual lethal capabilities was necessary under Nevada law for the 4 imposition of the deadly weapon enhancement.

5 Ground 4: Petitioner’s appellate counsel failed to raise the issue of whether 6 toy guns can support the imposition of a deadly weapon enhancement on direct appeal. 7 (ECF No. 5 at 11-14, 17-18.) 8 III. LEGAL STANDARD 9 A. Review under the Antiterrorism and Effective Death Penalty Act 10

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 11 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): 12 An application for a writ of habeas corpus on behalf of a person in custody 13 pursuant to the judgment of a State court shall not be granted with respect 14 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 15 (1) resulted in a decision that was contrary to, or involved an unreasonable 16 application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 17

18 (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. 19

20 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme 21 Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court applies a 22 rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state 23 court confronts a set of facts that are materially indistinguishable from a decision of [the 24 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (first quoting Williams v. 25 Taylor, 529 U.S. 362, 405-06 (2000), and then citing Bell v. Cone, 535 U.S. 685, 694 26 (2002)). A state court decision is an unreasonable application of clearly established 27 Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court 28 identifies the correct governing legal principle from [the Supreme] Court’s decisions but 2 ‘unreasonable application’ clause requires the state court decision to be more than 3 incorrect or erroneous. The state court’s application of clearly established law must be 4 objectively unreasonable.” Id. 5 The Supreme Court has instructed that “[a] state court’s determination that a claim 6 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 7 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 8 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “[E]ven a strong case 9 for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. at 10 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 11 (2011) (internal quotation marks and citations omitted) (describing the standard as a 12 “difficult to meet” and “highly deferential standard for evaluating state-court rulings, which 13 demands that state-court decisions be given the benefit of the doubt”). 14 B. Standard for evaluating an Ineffective-Assistance-of-Counsel claim 15 In Strickland, the Supreme Court propounded a two-prong test for analysis of 16 claims of ineffective assistance of counsel requiring Petitioner to demonstrate that: (1) the 17 attorney’s “representation fell below an objective standard of reasonableness[;]” and (2) 18 the attorney’s deficient performance prejudiced Petitioner such that “there is a reasonable 19 probability that, but for counsel’s unprofessional errors, the result of the proceeding would 20 have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Courts 21 considering a claim of ineffective assistance of counsel must apply a “strong presumption 22 that counsel’s conduct falls within the wide range of reasonable professional assistance.” 23 Id. at 689. It is Petitioner’s burden to show “counsel made errors so serious that counsel 24 was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at 687. 25 Additionally, to establish prejudice under Strickland, it is not enough for Petitioner “to 26 show that the errors had some conceivable effect on the outcome of the proceeding.” Id. 27 at 693. Rather, the errors must be “so serious as to deprive the [Petitioner] of a fair trial, 28 a trial whose result is reliable.” Id. at 687. When the ineffective-assistance-of-counsel 2 Petitioner to demonstrate “there is a reasonable probability that, but for counsel’s errors, 3 [Petitioner] would not have pleaded guilty and would have insisted on going to trial.” Hill 4 v. Lockhart, 474 U.S. 52, 59 (1985). 5 Under Hill, a challenge to the voluntariness of a plea may be based upon a claim 6 of ineffective assistance of counsel. As the Supreme Court observed: 7 For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the 8 error “prejudiced” [Petitioner] by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would 9 have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the 10 evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise [Petitioner] of a potential 11 affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would 12 have succeeded at trial. . . . As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, 13 should be made objectively, without regard for the “idiosyncrasies of the particular decisionmaker.” 14

15 Id. at 59-60 (citing Strickland, 466 U.S. at 695). Where a state district court previously 16 adjudicated the claim of ineffective assistance of counsel under Strickland, establishing 17 the decision was unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05. 18 In Harrington, the Supreme Court clarified that Strickland and § 2254(d) are each highly 19 deferential, and when the two apply in tandem, review is doubly so. See id. at 105; see 20 also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks 21 omitted) (“When a federal court reviews a state court’s Strickland determination under 22 AEDPA, both AEDPA and Strickland’s deferential standards apply; hence, the Supreme 23 Court’s description of the standard as doubly deferential.”). The Court further clarified, 24 “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable. 25 The question is whether there is any reasonable argument that counsel satisfied 26 Strickland’s deferential standard.” Harrington, 562 U.S. at 105. 27 /// 28 /// 2 A. Ground 2 3 Petitioner argues his guilty plea was not voluntary or intelligent because his trial 4 counsel failed to advise Petitioner that under Nevada law, sufficient evidence of the guns’ 5 lethal capabilities was necessary for a deadly weapon enhancement. (ECF No. 5 at 11- 6 14.) Respondents counter that Petitioner’s written affirmations in the guilty plea 7 memorandum and contemporaneous on-the-record statements at Petitioner’s 8 arraignment demonstrate Petitioner’s plea was intelligent and voluntary. (ECF No. 17 at 9 5-10.) Respondents further argue Petitioner failed to establish prejudice and the Nevada 10 Court of Appeals applied the correct federal constitutional standard in its dismissal of 11 Petitioner’s state habeas petition. (Id. at 10-11.) 12 In Petitioner’s state habeas appeal, the Nevada Court of Appeals held as follows: 13 In his petition, Ball claimed he received ineffective assistance of trial and appellate counsel. To establish ineffective assistance of trial counsel, a 14 petitioner must demonstrate counsel’s performance was deficient because it fell below an objective standard of reasonableness, and resulting 15 prejudice in that there is a reasonable probability, but for counsel’s errors, the petitioner would not have pleaded guilty and would have insisted on 16 going to trial. Kirksey v. State, 112 Nev. 980, 997-88, 923 P.2d 1102, 1107 (1996). 17 . . . 18 Ball claimed trial counsel were ineffective for (1) failing to investigate 19 whether he used toy guns to commit his robberies, [FN2] (2) failing to object to the deadly-weapon argument the State made during the preliminary 20 hearing, and (3) allowing him to enter guilty pleas to charges that included the use of a deadly weapon. Ball further claimed appellate counsel was 21 ineffective for failing to raise the issue of whether toy guns can support the imposition of a deadly weapon enhancement. 22 [FN2] Ball did not argue he used a toy gun on direct appeal 23 and there is nothing in the record before this court that indicates Ball used a toy gun. Further, Ball pleaded guilty to 24 using a deadly weapon.

25 The district court found even if counsel had investigated whether the toy guns were actually real guns, or raised the issue on appeal, Ball would 26 not have been entitled to relief. Ball used the guns to provoke a deadly reaction from the robbery victims. And the Nevada Supreme Court has 27 consistently held that an inoperable firearm, which would necessarily include a toy gun in this case, is considered a deadly weapon for purposes 28 of the sentence enhancement because its use may provoke a deadly reaction from the victim or from the bystanders. did not err by dismissing Ball’s postconviction habeas petition. See Barnhart 2 v. State, 122 Nev. 301, 304-05, 130 P.3d 650, 652 (2006) (“Whether [a] gun was actually loaded and capable of firing bullets in a deadly fashion is of no 3 consequence in determining whether it is a deadly weapon . . . even an inoperative firearm is considered a deadly weapon for purpose of the 4 sentence enhancement because its use may provoke a deadly reaction from bystanders.”) 5

6 (ECF No. 12-29 at 2, 3-4 (internal brackets omitted).) The Nevada Court of Appeals’ 7 rejection of Petitioner’s ineffective-assistance-of-counsel claim for failing to demonstrate 8 prejudice was neither contrary to nor an objectively unreasonable application of 9 Strickland. 10 The Nevada Court of Appeals reasonably found Petitioner would not plead 11 differently and insisted on going to trial if his trial counsel advised him the State needed 12 to prove the guns at issue were capable of inflicting lethal harm to impose the deadly 13 weapon enhancement. The additional information Petitioner claims his counsel should 14 have given him would not have led to a different action because the defense that 15 Petitioner used toy guns would not have been successful. Specifically, the Court of 16 Appeals relied on Nevada law that even inoperable firearms, including toy guns, are 17 considered deadly weapons for purposes of sentence enhancement because their use 18 may provoke a deadly reaction. (ECF No. 12-29 at 3.) On habeas review, federal courts 19 do not second-guess state courts on matters of state law. See Waddington v. Sarausad, 20 555 U.S. 179, 192, n.5 (2009) (citation omitted) (“The Washington Supreme Court 21 expressly held that the jury instruction correctly set forth state law . . . and we have 22 repeatedly held that ‘it is not the province of a federal habeas court to reexamine state- 23 court determinations on state-law questions.’” 24 To obtain relief on this type of claim, “[P]etitioner must convince the court that a 25 decision to reject the plea bargain would have been rational under the circumstances.” 26 Padilla v. Kentucky, 559 U.S. 356, 372 (2010). In exchange for a guilty plea, the State 27 agreed to drop two separate felony charges in the third-amended complaint and dismiss 28 charges against Petitioner in two separate cases. (ECF Nos. 10-25, 10-26 at 6-7, 10-27 2 have faced two additional felony charges as well as two additional, separate cases. 3 Petitioner’s proffered argument that proof of the guns’ actual lethal capabilities was 4 necessary would have failed as Nevada law considers inoperable firearms as deadly 5 weapons for purposes of the sentence enhancement. The Nevada Court of Appeals 6 reasonably found Petitioner failed to demonstrate a reasonable probability that trial 7 counsel’s failure to give Petitioner correct advice would cause a rational defendant in 8 Petitioner’s situation to plead not guilty and go to trial. See Hill, 474 U.S. at 59-60. 9 Petitioner is therefore denied federal habeas relief for Ground 2. 10 B. Ground 4 11 Petitioner also argues his appellate counsel was ineffective for failing to raise the 12 issue of whether toy guns can support the imposition of a deadly weapon enhancement. 13 (ECF No. 5 at 17-18.) Respondents respond that Petitioner would not have succeeded 14 on appeal because the “toy gun” issue was “legally insufficient.” (ECF No. 15 at 14.) The 15 Nevada Court of Appeals determined the record supports the state district court’s findings 16 that “even if [appellate] counsel had . . . raised the issue on appeal, [Petitioner] would not 17 have been entitled to relief.” (ECF No. 12-29 at 3.) The Court of Appeals relied on Nevada 18 Supreme Court case law which “has consistently held that an inoperable firearm, which 19 would necessarily include a toy gun in this case, is considered a deadly weapon for 20 purposes of the sentence enhancement because its use may provoke a deadly reaction 21 from the victim or from the bystanders.” (Id.) 22 To prevail on his ineffective-assistance-of-appellate-counsel claim, Petitioner must 23 show his appellate counsel acted deficiently and “a reasonable probability that, but for his 24 [appellate] counsel’s” deficiency, Petitioner “would have prevailed on his appeal.” Smith 25 v. Robbins, 528 U.S. 259, 285 (2000). When evaluating claims of ineffective assistance 26 of appellate counsel, the performance and prejudice prongs of the Strickland standard 27 partially overlap. See, e.g., Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir. 2001); 28 Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Effective appellate advocacy 2 a weak issue on appeal neither falls below an objective standard of competence nor 3 causes prejudice to the client for the same reason—because the omitted issue has little 4 or no likelihood of success on appeal. Id. 5 The Nevada Court of Appeals reasonably determined Petitioner failed to 6 demonstrate prejudice. There is no reasonable probability the submission that proof of 7 the lethal capabilities of the toy guns was required to support the imposition of the deadly 8 weapon enhancement would have changed the outcome of the appeal. At the preliminary 9 hearing, three witnesses testified that an individual robbed their places of employment by 10 partially exposing a handgun tucked into the individual’s waistband and instructing the 11 witnesses to give the individual money. (ECF No. 10-8.) Two of the witnesses identified 12 Petitioner as the individual in open court. (Id. at 29, 46-47.) Nonetheless, Petitioner 13 pleaded guilty and affirmed he committed the acts alleged in each count of robbery with 14 a deadly weapon. (ECF No. 10-26 at 12.) Petitioner would not have prevailed on appeal 15 if his appellate counsel raised Petitioner used toy guns not capable of being lethal 16 because Nevada law considers inoperable firearms, including toy guns, deadly weapons 17 for the purposes of sentence enhancement as their use may provoke a deadly reaction. 18 Because the Court of Appeals reasonably denied Petitioner’s ineffective-assistance-of- 19 appellate-counsel claim, Petitioner is denied federal habeas relief on Ground 4. 20 V. CERTIFICATE OF APPEALABILITY 21 This is a final order adverse to Petitioner. Rule 11 of the Rules Governing Section 22 2254 Cases requires this Court to issue or deny a certificate of appealability (“COA”). 23 Therefore, this Court has sua sponte evaluated the claims, Grounds 1 through 4, within 24 the Petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 25 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). Pursuant to § 2253(c)(2), a COA may 26 issue only when the petitioner “has made a substantial showing of the denial of a 27 constitutional right.” 28 U.S.C. § 2253(c)(2). With respect to claims rejected on the merits, 28 a petitioner “must demonstrate that reasonable jurists would find the district court’s 4 assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 2 || 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Applying this 3 || standard, this Court finds that a certificate of appealability is unwarranted. || VI. CONCLUSION 5 It is therefore ordered that Petitioner’s writ of habeas corpus (ECF No. 5) is denied. 6 It is further ordered that a certificate of appealability is denied. 7 The Clerk of Court is directed to enter judgment accordingly. 8 DATED THIS 19" Day of October 2020. 9 10 {Lhd 11 meno CHIEF UNITED STATES DISTRICT JUDGE

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