Ball v. Baker

Opinion

* * *

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

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

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 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 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 the gas station, walked to the back of the store, and approached the counter. (Id. at 25.) The individual lifted his shirt up with his right hand to expose the black butt of a gun to the employee. (Id. at 25-26, 31.) The individual stated he would shoot if the employee did not give him the money. (Id. at 30.) The employee placed about $450 to $500 on the counter for the individual. (Id. at 32-33.) As a witness, the employee identified Petitioner in open court as the individual who robbed the gas station. (Id. at 29.) Another witness testified that while she was working at the front desk at La Quinta Inn located in Reno, Nevada on August 28, 2013, an individual approached her, pulled his hooded sweatshirt up on the right side to expose a black revolver with a brown handle, and instructed her to give him all of the money in the register. (Id. at 41-43.) The witness opened the register and gave the money in the register to the individual. (Id. at 44.) The witness identified Petitioner in open court as the individual who robbed La Quinta Inn. (Id. at 46-47.) A former employee of McCarran Mart located in Sparks, Nevada, and witness to a robbery there on August 10, 2013, testified that a man lifted his shirt up to expose what appeared to be the handle of a nine-millimeter gun and stated, “[g]ive me the money. Don’t push no buttons.” (Id. at 92-95.) The former employee gave the individual the cash and then called the police. (Id. at 96.) When the police presented the former employee with photographs, the former employee did not identify Petitioner as the individual who robbed McCarran Mart. (Id. at 98-99.) On the night Petitioner was arrested, Petitioner was a passenger in a Ford Expedition parked at Sundance Motor Lodge. (Id. at 62.) The vehicle was searched, and detectives seized, inter alia, a shotgun that had a sawed-off barrel and two different handguns. (Id. at 63, 67, 74-75.) A detective testified that one of the handguns was a “revolver type pistol” he believed was a “pellet gun” with a “wood type grip.” (Id. at 75.)

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

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

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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

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

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

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 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 consistently held that an inoperable firearm, which would necessarily include a toy gun in this case, is considered a deadly weapon for purposes 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 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 consequence in determining whether it is a deadly weapon . . . even an inoperative firearm is considered a deadly weapon for purpose of the sentence enhancement because its use may provoke a deadly reaction from bystanders.”)

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