1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ELIZABETH CARLEY, Case No.: 2:16-cv-02227-JAD-BNW
5 Petitioner Merits Order Denying Federal Habeas Relief 6 v. 7 DWIGHT NEVEN, et al., [ECF No. 12] 8 Respondents 9 Petitioner Elizabeth Carley was sentenced to two consecutive terms of eighteen years in 10 prison with parole eligibility beginning after a total of ten years, after she pled guilty in Nevada 11 state court to forgery, establishing or possessing a financial forgery laboratory, possession of 12 credit or debit card without cardholder’s consent, and theft.1 Carley seeks a writ of habeas 13 corpus under 28 U.S.C. § 2254 based on claims that her trial counsel was ineffective and her 14 guilty plea was not knowing, voluntary, or intelligent.2 Having evaluated the merits of those 15 claims, I find that habeas relief is not warranted, so I deny Carley’s petition, deny her a 16 certificate of appealability, and close this case. 17 Background 18 A. The facts underlying Carley’s conviction3 19 At the grand jury proceedings, an employee of a property-management company testified 20 that a lease agreement was entered into for the apartment residence located at 1500 E. Karen 21 Avenue. In the renter’s file for the apartment residence, there was a list of roommates that 22 included Carley and another individual named James Stojic as well as a copy of required renter’s 23 24
1 ECF No. 15-10. 25 2 ECF No. 12 at 16–46. 26 3 These facts are taken from the grand jury proceedings transcript and arrest report. ECF Nos. 27 13-10, 13-20. For simplicity’s sake, I cite to these exhibits generally for this entire background section. 28 1 insurance listing Carley and Stojic as additional insureds. A Carmax employee testified that an 2 individual purchased a vehicle using the identification of an individual named Ashley Ilyin. 3 A detective with the Las Vegas Metropolitan police department testified that he 4 interviewed Carley who was in custody for two separate probation violations. Following the 5 interview, Carley called Stojic from a recorded telephone line and told him to get rid of the Ilyin 6 identification (“ID”) and the ID used to rent the apartment residence. Carley was interviewed by 7 detectives again and she admitted to purchasing a vehicle from Carmax using Ilyin’s name and 8 ID. 9 Upon execution of the search warrant of the apartment residence, the detective testified 10 that items such as drivers’ licenses, photocopies of IDs, credit cards, printers, checks, paper 11 stock, card stock, computers, and printers were seized. In addition, court documents for, and 12 photographs of, Carley were found at the apartment residence. Further, an individual named 13 Ivan Barraza was searched after leaving the apartment residence at the time of the execution of 14 the search warrant, and a cardstock printer, identification cards, and credit cards were found in 15 his possession. 16 B. Procedural history 17 While she was serving probation for two separate matters,4 Carley and her two co- 18 defendants, James Stojic and Ivan Barraza, were charged in a sixty-three count indictment for 19 conspiracy to commit theft, possession or sale of document or personal identifying information, 20 burglary, forgery, obtaining and using personal identification of another, theft, conspiracy to 21 commit establishing or possessing a financial forgery laboratory, establishing or possessing a 22 financial laboratory, possessing personal identifying information, and possession of credit or 23 debit card without cardholder’s consent.5 The indictment charged 61 felonies and 2 24 misdemeanors.6 25
4 ECF Nos. 44-1, 44-4. 26 5 ECF No. 13-25. 27 6 Id. 28 1 In a January 2, 2014, guilty plea agreement and plea colloquy, Carley pled guilty to one 2 count of forgery, one count of establishing or possessing a financial forgery laboratory, one 3 count of possession of credit or debit card without cardholder’s consent, and one count of theft.7 4 Her co-defendant, Stojic, also pled guilty to one count of forgery, one count of establishing or 5 possessing a financial forgery laboratory, one count of possession of credit or debit card without 6 cardholder’s consent, and one count of theft.8 The State offered the plea deal to Carley and 7 Stojic contingent on both defendants accepting the plea agreement.9 In exchange, the State 8 agreed to drop the remaining charges.10 The other co-defendant, Barraza, had 9 pled guilty to one count of possession of credit or debit card without cardholder’s consent, one 10 count of establishing or possessing a financial forgery laboratory, and one count of conspiracy to 11 commit establishing or possessing a financial forgery laboratory in a plea agreement on July 8, 12 2013.11 13 Carley then filed a motion to appoint alternate counsel, and the state district court 14 appointed new counsel.12 Prior to sentencing, Carley filed a motion to withdraw her guilty plea 15 based on the alleged coercive behavior of her former counsel and counsel for Stojic and because 16 she entered her plea unknowingly.13 Following an evidentiary hearing, the state district court 17 denied Carley’s motion to withdraw her guilty plea and found that her plea was entered freely 18 and voluntarily.14 19 20
7 ECF Nos. 14-31, 15. 21 8 ECF No. 14-33. 22 9 ECF No. 14-31 at 4. 23 10 ECF Nos. 14-30, 13-32. 24 11 ECF No. 14-9. 25 12 ECF No. 15-1. 26 13 ECF No. 15-5 at 5. 27 14 ECF No. 15-9 at 11–12. 28 1 Carley had prior felony convictions and was eligible to be sentenced as a habitual 2 criminal.15 The state district court sentenced Carley to two consecutive terms of eighteen years 3 in prison with parole eligibility beginning after five years for each term under the small habitual 4 criminal statute.16 Carley appealed, and the Nevada Supreme Court affirmed her judgment of 5 conviction.17 On appeal, the Nevada Supreme Court found that her claim of coercion was belied 6 by the record and that her plea was entered knowingly and voluntarily.18 7 Similar to Carley, Stojic also filed a motion to withdraw his guilty plea post-plea and pre- 8 sentencing.19 In his motion to withdraw guilty plea, Stojic alleged that his counsel’s ineffective 9 assistance rendered his guilty plea invalid because his counsel incorrectly advised him that his 10 plea would lead to one small habitual sentence.20 Stojic, however, was not appointed alternate 11 counsel. The state district court denied Stojic’s motion to withdraw his guilty plea and found 12 that “[a]ppointment of an attorney . . . wouldn’t have changed the record.”21 13 Stojic appealed his judgment of conviction on the basis that the state district court erred 14 by denying his presentence motion to withdraw his guilty plea. The Nevada Court of Appeals 15 found that the state district court abused its discretion by not appointing conflict-free counsel to 16 represent Stojic during the pendency of his motion to withdraw guilty plea.22 The Nevada Court 17 of Appeals reversed his judgment of conviction and remanded to the state district court with 18 19 20
15 Id. at 21. 21 16 Id. at 22. 22 17 ECF No. 15-20. 23 18 Id. at 3. 24 19 ECF No. 15-13. 25 20 Id. at 4-5. 26 21 ECF No. 15-16 at 3. 27 22 ECF No. 16-18 at 3–4. 28 1 instructions to appoint conflict-free counsel to represent Stojic in his motion to withdraw his 2 guilty plea and conduct an evidentiary hearing.23 3 On remand, Stojic was appointed new counsel and filed a supplemental motion to 4 withdraw guilty plea.24 Before the state district court ruled on the motion, Stojic entered into a 5 plea agreement wherein he agreed to plead guilty to one count of establishing or possessing a 6 financial forgery lab, one count of possession of credit cards or debit card without cardholder’s 7 consent, and one count of possession of document or personal identifying information.25 At 8 Stojic’s sentencing hearing, the State provided that “part of the reason for this negotiation related 9 to allegations concerning the search of the Defendant’s apartment as well as luggage found with 10 the codefendant Ivan Barraza.”26 11 Carley filed a state habeas petition.27 The state district court denied her petition, and the 12 Nevada Court of Appeals affirmed that denial.28 Carley filed a federal habeas petition and 13 amended petition.29 The respondents filed a motion to dismiss.30 I granted the respondent’s 14 motion to dismiss in part, finding Ground 1(b) actually unexhausted but technically exhausted as 15 procedurally barred by the state courts, but I deferred the decision on whether Carley could 16 demonstrate cause and prejudice under Martinez v. Ryan.31 The respondents answered and 17 Carley replied.32 18
23 Id. at 4. 19 24 ECF No. 18. 20 25 ECF No. 19-18. 21 26 ECF No. 19-19 at 12. 22 27 ECF Nos. 15-26, 16-7. 23 28 ECF Nos. 16-16, 19. 24 29 ECF Nos. 9, 12. 25 30 ECF No. 29. 26 31 ECF No. 34. See Martinez v. Ryan, 566 U.S. 1 (2012). 27 32 ECF Nos. 45, 46. 28 1 Discussion 2 A. Legal standards 3 1. Antiterrorism and Effective Death Penalty Act (AEDPA) 4 If a state court has adjudicated a habeas corpus claim on its merits, a federal district court 5 may only grant habeas relief with respect to that claim if the state court’s adjudication “resulted 6 in a decision that was contrary to, or involved an unreasonable application of, clearly established 7 Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision 8 that was based on an unreasonable determination of the facts in light of the evidence presented in 9 the State court proceeding.”33 A state court acts contrary to clearly established federal law if it 10 applies a rule contradicting the relevant holdings or reaches a different conclusion on materially 11 indistinguishable facts.34 And a state court unreasonably applies clearly established federal law 12 if it engages in an objectively unreasonable application of the correct governing legal rule to the 13 facts at hand.35 Section 2254 does not, however, “require state courts to extend” Supreme Court 14 precedent “to a new context where it should apply” or “license federal courts to treat the failure 15 to do so as error.”36 The “objectively unreasonable” standard is difficult to satisfy;37 “even 16 ‘clear error’ will not suffice.”38 17 Habeas relief may only be granted if “there is no possibility [that] fairminded jurists 18 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.”39 19 As “a condition for obtaining habeas relief,” a petitioner must show that the state-court decision
20 33 28 U.S.C. § 2254(d). 21 34 Price v. Vincent, 538 U.S. 634, 640 (2003). 22 35 White v. Woodall, 134 S. Ct. 1697, 1705–07 (2014). 23 36 White, 134 S. Ct. 1705–06. 24 37 Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013). 25 38 Wood v. McDonald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (citation omitted); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question . . . is not whether a federal court 26 believes the state court’s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.”). 27 39 Harrington v. Richter, 562 U.S. 86, 102 (2011). 28 1 “was so lacking in justification that there was an error well understood and comprehended in 2 existing law beyond any possibility of fairminded disagreement.”40 “[S]o long as ‘fairminded 3 jurists could disagree’ on the correctness of the state court’s decision,” habeas relief under 4 Section 2254(d) is precluded.41 AEDPA “thus imposes a ‘highly deferential standard for 5 evaluating state-court ruling,’ . . . and ‘demands that state-court decisions be given the benefit of 6 the doubt.’”42 7 If a federal district court finds that the state court committed an error under § 2254, the 8 district court must then review the claim de novo.43 The petitioner bears the burden of proving 9 by a preponderance of the evidence that she is entitled to habeas relief,44 but state-court factual 10 findings are presumed correct unless rebutted by clear and convincing evidence.45 11 2. Standard for Federal Habeas Review of an Ineffective-Assistance Claim 12 The right to counsel embodied in the Sixth Amendment provides “the right to the 13 effective assistance of counsel.”46 Counsel can “deprive a defendant of the right to effective 14 assistance[] simply by failing to render ‘adequate legal assistance[.]’”47 In the hallmark case of 15 Strickland v. Washington, the United States Supreme Court held that an ineffective-assistance 16 claim requires a petitioner to show that: (1) her counsel’s representation fell below an objective 17 standard of reasonableness under prevailing professional norms in light of all of the 18
19 40 Id. at 103. 20 41 Id. at 101. 21 42 Renico v. Lett, 559 U.S. 766, 773 (2010) (citations omitted). 22 43 Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, 23 we must decide the habeas petition by considering de novo the constitutional issues raised.”). 24 44 Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 25 45 28 U.S.C. § 2254(e)(1). 26 46 Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). 27 47 Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 335–36 (1980)). 28 1 circumstances of the particular case;48 and (2) it is reasonably probable that, but for counsel’s 2 errors, the result of the proceeding would have been different.49 3 A reasonable probability is “probability sufficient to undermine confidence in the 4 outcome.”50 Any review of the attorney’s performance must be “highly deferential” and must 5 adopt counsel’s perspective at the time of the challenged conduct so as to avoid the distorting 6 effects of hindsight.51 “The question is whether an attorney’s representation amounted to 7 incompetence under prevailing professional norms, not whether it deviated from best practice or 8 most common custom.”52 The burden is on the petitioner to overcome the presumption that 9 counsel made sound trial-strategy decisions.53 10 When an ineffective-assistance-of-counsel claim is in the context of a guilty plea, the 11 Strickland prejudice prong requires a petitioner to demonstrate that “there is a reasonable 12 probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and 13 would have insisted on going to trial.”54 As the United States Supreme Court observed: 14 In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenge to 15 convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the 16 determination whether the error “prejudiced” the [petitioner] by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of 17 the evidence would have lead counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether 18 the evidence likely would have changed the outcome of a trial.55 19 20
48 Strickland, 466 U.S. at 690. 21 49 Id. at 694. 22 50 Williams v. Taylor, 529 U.S. 362, 390–91 (2000) 23 51 Strickland, 466 U.S. at 689. 24 52 Harrington, 562 U.S. at 104. 25 53 Id. 26 54 Hill v. Lockhart, 474 U.S. 52, 59 (1985). 27 55 Id. 28 1 The United States Supreme Court has described federal review of a state supreme court’s 2 decision on an ineffective-assistance claim as “doubly deferential.”56 So, the court must “take a 3 ‘highly deferential’ look at counsel’s performance . . . through the ‘deferential lens of § 4 2254(d)’”57 and consider only the record that was before the state court that adjudicated the 5 claim on its merits.58 6 B. Evaluating Carley’s remaining claims 7 In Ground 1, Carley alleges that her trial counsel rendered ineffective-assistance during 8 the pre-trial and plea bargaining stages in five ways:59 9 Ground 1(a): Counsel failed to file a motion to suppress the evidence seized at 1500 E. Karen Ave. 10 Ground 1(b): Counsel failed to file a motion to suppress Carley’s statements to 11 law enforcement regarding the Carmax vehicle.
12 Ground 1(c): Counsel failed to challenge insufficient counts in the indictment.
13 Ground 1(d): Counsel failed to advise Carley as to defenses related to the 14 residence at 1500 E. Karen Ave.
15 Ground 1(e): Counsel failed to advise Carley that she was subject to be sentenced as a habitual offender. 16 17 In Ground 2, Carley asserts that her guilty plea was not knowing, voluntary, or intelligent 18 because her counsel and Stojic’s counsel coerced her to plead guilty and because her counsel 19 failed to properly advise her regarding the strength of the State’s case. 20 1. Grounds 1(a)—ineffective assistance re: motion to suppress evidence 21 seized at residence. 22 In Ground 1(a), Carley alleges that she was denied effective-assistance-of-counsel when 23 her counsel failed to move to suppress evidence seized at an apartment residence located at 1500 24
56 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). 25 57 Id. 26 58 Id. at 181–84. 27 59 ECF No. 12 at 16. 28 1 E. Karen Avenue.60 Carley’s co-defendant, Barraza, was arrested near the apartment, and 2 evidence in a suitcase and backpack that he was carrying was also seized. Carley asserts that the 3 warrant for the apartment was overbroad, the police failed to properly document items seized 4 from the apartment, and the police did not have a warrant to search Barraza.61 She adds that 5 Stojic was offered a better plea deal on remand due to allegations concerning the search of the 6 apartment residence.62 In affirming the denial of Carley’s state habeas petition, the Nevada 7 Court of Appeals rejected these theories: 8 Carley claimed her counsel was ineffective for failing to file a motion to suppress evidence obtained pursuant to a search warrant. Carley asserted the warrant violated 9 her Fourth Amendment rights because it was not based on probable cause and lacked particularity. Carley failed to demonstrate her counsel’s performance was 10 deficient or resulting prejudice. Carley stated her counsel informed her that counsel had reviewed the warrant, concluded it was valid, and declined to file a motion to 11 suppress on that basis. Tactical decisions such as this one “are virtually unchallengeable absent extraordinary circumstances,” Ford v. State, 105 Nev. 850, 12 853, 784 P.2d 951, 953 (1989), which Carley did not demonstrate.
13 Moreover, search warrants must be based on probable cause. See U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 646 n.4 (1961); Keesee v. State, 14 110 Nev. 997, 1002, 879 P.2d 63, 66-67 (1994). “Probable cause requires . . . trustworthy facts and circumstances which would cause a person of reasonable 15 caution to believe that it is more likely than not that the specific items to be searched for are: seizable and will be found in the place to be searched.” Keesee, 110 Nev. 16 at 1002, 879 P.2d at 66 (internal quotation marks omitted).
17 Additionally, search warrants must describe the items to be seized with particularity. See U.S. Const. amend. IV. While the descriptions must be specific 18 enough to allow the person conducting the search to reasonably identify the things authorized to be seized, a search warrant that describes generic categories of items 19 will not be deemed invalid if a more specific description of an item is not possible. See United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). 20 Here, we conclude Carley’s admissions regarding her involvement in 21 fraudulent activity, her recorded jailhouse phone call to an accomplice further discussing the fraudulent activities, and the authorities’ investigation into Carley 22 and her associates fraudulent activities sufficiently established probable cause for the issuance of the search warrant. We also conclude the warrant described the 23 items to be seized with sufficient particularity to permit the persons conducting the search to identify the things authorized to be seized because the warrant plainly 24 authorized the searchers to collect evidence that could be used in making fraudulent documents. Accordingly, Carley failed to demonstrate a reasonable probability she 25
60 Id. at 18. 26 61 Id. at 19–25. 27 62 Id. at 32. 28 would have refused to plead guilty and would have insisted on going to trial had 1 counsel challenged the validity of the search warrant. Therefore, the district court did not err in denying this claim.[FN2] 2 [FN2] Carley also claimed counsel should have attempted to suppress 3 evidence obtained through a search during the arrest of a codefendant. Carley cannot demonstrate either deficiency for prejudice for this claim 4 because she did not have standing to challenge the search for her codefendant. See Rakas v. Illinois, 439 U.S. 128, 133-34, (1978) (“Fourth 5 Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted”).63 6 7 I find that the Nevada Court of Appeals’ rejection of Carley’s claim was neither contrary 8 to nor an unreasonable application of clearly established law as determined by the United States 9 Supreme Court. Evidence obtained in violation of the Fourth Amendment may be suppressed.64 10 Probable cause is required to justify certain governmental intrusions upon interests protected by 11 the Fourth Amendment.65 Probable cause to search exists when there is “a fair probability that 12 contraband or evidence of a crime will be found in a particular place.”66 Fourth Amendment 13 rights are personal rights that may not be vicariously asserted, and “a person aggrieved by an 14 illegal search and seizure only through the introduction of damaging evidence secured by a 15 search of a third person’s premises or property has not had any of his Fourth Amendment rights 16 infringed.”67 17 The Nevada Court of Appeals’ determination that Carley failed to demonstrate a 18 reasonable probability that, but for counsel’s failure to challenge the search warrant, she would 19 have pled differently and insisted on going to trial was reasonable. As the Court of Appeals 20 noted, the breadth of the search warrant was supported by probable cause.68 During an 21 interview, Carley admitted to a detective that she purchased a vehicle from Carmax using 22
63 ECF No. 19 at 3–4. 23 64 Wong Sun v. United States, 371 U.S. 471 (1963). 24 65 Illinois v. Gates, 462 U.S. 213, 241 (1983). 25 66 Id. at 238. 26 67 Rakas v. Illinois, 439 U.S. 128 (1978). 27 68 Id. at 4. 28 1 another individual’s ID.69 Over a recorded telephone line, Carley called Stojic to discuss 2 destroying IDs and to leave the apartment residence.70 Detectives further investigated the rental 3 agreement and documents related to the vehicle purchase.71 The Court of Appeals reasonably 4 found that the search warrant described the items to be seized with sufficient particularity. It 5 directed the police to seize evidence of specific crimes related to creating fraudulent 6 documents.72 7 In addition, as the Court of Appeals noted, Carley could not vicariously challenge the 8 search of Barraza during his arrest.73 Carley’s assertion that her counsel could have argued that 9 “there was reasonable doubt about which items came from where” regarding the evidence seized 10 does not demonstrate prejudice.74 Given that the police executed a valid search, Carley failed to 11 demonstrate a reasonable probability that she would have pled guilty and faced fifty-nine 12 additional charges at trial, but for counsel’s failure to challenge the search warrant.75 13 Accordingly, the Nevada Court of Appeals’ determination that Carley failed to demonstrate 14 prejudice was not an unreasonable application of Strickland. 15 “Deference to the state court’s prejudice determination is all the more significant in light 16 of the uncertainty inherent in plea negotiations . . . . The stakes for defendants are high, and 17 many elect to limit risk by forgoing the right to assert their innocence. A defendant who accepts 18 a plea bargain on counsel’s advice does not necessarily suffer prejudice when his counsel fails to 19 seek suppression of evidence, even if it would be reversible error for the court to admit that 20
21 69 ECF Nos. 13-6, 13-10 at 6. 22 70 ECF No. 13-10 at 6. 23 71 Id. at 4-8. 24 72 ECF No. 13-7 at 4. 25 73 See Rakas v. Illinois, 439 U.S. 128 (1978). 26 74 ECF No. 12 at 26. 27 75 See Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (“[P]etitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances”). 28 1 evidence.”76 Carley falls short of overcoming the substantial deference that is owed to such state 2 court determinations. She failed to demonstrate that, had counsel moved to suppress the 3 evidence seized as a result of the search warrant, the motion would have been successful or she 4 would have pled differently and insisted on going to trial. So I deny Carley habeas relief on 5 Ground 1(a). 6 I would reach the same result as to Ground 1(a) on de novo review for additional reasons. 7 Although Carley cites to Stojic’s plea deal on remand to support her claim of ineffective 8 assistance of counsel, Stojic’s plea deal does not establish deficiency or resulting prejudice. 9 There are substantial distinctions between the procedural posture and evidence against Stojic and 10 Carley. Stojic’s motion to withdraw his guilty plea was based on his trial counsel’s ineffective 11 assistance, and on appeal the Nevada Court of Appeals found that the state district court abused 12 its discretion by not appointing conflict-free counsel to represent Stojic during the pendency of 13 his motion to withdraw guilty plea, whereas Carley was granted alternate counsel. Stojic thus 14 entered into his plea agreement after his case was remanded on appeal. Further, Carley had 15 confessed to law enforcement that she purchased a vehicle from Carmax using another 16 individual’s identification. Carley called Stojic on a recorded line to discuss disposing of 17 identifications and to warn Stojic that he should leave the apartment. The State in Stojic’s case 18 faced the cost of litigation and the risk of Stojic blaming the crimes on his co-defendants who 19 had already been sentenced. Accordingly, Stojic’s plea agreement on remand does not establish 20 that Carley’s counsel’s performance fell below an objective standard of reasonableness or that, 21 but for Carley’s counsel’s alleged error, Carley would not have pled guilty and would have 22 insisted on going to trial. 23 2. Ground 1(b)—ineffective assistance re: motion to suppress Carley’s 24 statements to law enforcement. 25 In Ground 1(b), Carley alleges that her counsel was ineffective for failing to move to 26 suppress Carley’s incriminating statements to law enforcement on the basis that (1) she invoked 27
76 Premo v. Moore, 562 U.S. 115, 129 (2011). 28 1 her right to counsel during the interview, (2) police told Carley that her probation would be 2 revoked if she failed to answer questions, and (3) the police failed to record the interview.77 3 Respondents argue that Carley’s claim is procedurally defaulted and that her claim would 4 nonetheless fail because Carley waived her right to counsel.78 In my order granting dismissal in 5 part, I found that this ground for relief was technically exhausted, but I deferred ruling on 6 whether Carley can demonstrate cause and prejudice under Martinez v. Ryan until the merits of 7 these grounds were briefed by the parties.79 That time has come. 8 To show that a claim is “substantial” under Martinez, a petitioner must demonstrate that 9 the underlying ineffectiveness claim has “some merit.”80 That is, the petitioner must be able to 10 make at least some showing that trial counsel performed deficiently and that the deficient 11 performance harmed the defense.81 When evaluating counsel’s choices, I must make “every 12 effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 13 counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the 14 time.”82 “[C]ounsel should be strongly presumed to have rendered adequate assistance and made 15 all significant decisions in the exercise of reasonable professional judgment.”83 I now determine 16 that these grounds are not substantial and lack merit. 17 Carley has not established that her counsel’s performance fell “outside the wide range of 18 professionally competent assistance.”84 Counsel filed a motion to compel the production of the 19 detectives’ handwritten notes to cross-reference against the detectives’ typed transcript-like notes 20
77 ECF No. 12 at 33. 21 78 ECF No. 45 at 9–12. 22 79 ECF No. 34. See Martinez v. Ryan, 566 U.S. 1 (2012). 23 80 Martinez, 566 U.S. at 14. 24 81 See Strickland, 466 U.S. at 695–96. 25 82 Id. at 689. 26 83 Pinholster, 563 U.S. at 189. 27 84 Strickland, 466 U.S. at 690. 28 1 of their interview with Carley, which the state district court granted.85 According to the 2 detectives’ notes, Carley was given her Miranda rights and she affirmatively stated that she 3 understood them.86 In the arrest report, it was documented that Carley was read her Miranda 4 rights and that she agreed to speak with the detectives.87 Further, counsel did not have basis to 5 object to Carley’s interview with police on the basis that it was not video or audio taped because 6 there is no federal requirement that interviews or interrogations be recorded.88 7 Nor do I find that Carley can demonstrate that, but for counsel’s failure to move to 8 suppress her statements to law enforcement, that she would have rejected the plea offer and 9 proceeded to trial. Following Carley’s initial interview with detectives while she was in custody 10 for separate probation violations, she called Stojic on a recorded telephone line. Carley informed 11 Stojic that IDs were “hot,” that the police knew where Stojic was, and that he needed to leave.89 12 Additionally, the Carmax employee testified that a man and a woman were present at the time of 13 the vehicle purchase, and the employee identified Stojic.90 The car loan documents listed an 14 address that was associated with Carley, the State listed Carley’s probation officer as a witness to 15 testify regarding Carley’s residence, and a copy of the driver’s license submitted with the car 16 loan documents was seized at Carley’s apartment. 17 18
19 85 ECF Nos. 14-13, 14-20 at 4–5. 20 86 ECF No. 13-6 at 1. 21 87 ECF No. 13-7 at 6. 22 88 See United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir.2004) (refusing to require the electronic recording of all interrogations); Reinert v. Larkins, 379 F.3d 76, 94 n. 4 (3d Cir. 2004) 23 (declining to infer a federal right to have custodial interrogations recorded); United States v. 24 Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988) (determining that there is no constitutional requirement that confessions be recorded by any particular means); United States v. Owlboy, 370 25 F. Supp. 2d 946, 949 (D.N.D. 2005)(denying motion to suppress on the basis that there is no federal requirement that interviews be recorded). 26
89 ECF No. 13-7 at 6–7. 27 90 ECF No. 13-20 at 27. 28 1 Further, a “petitioner must convince the court that a decision to reject the plea bargain 2 would have been rational under the circumstances.”91 In exchange for Carley’s guilty plea, the 3 State agreed to drop 59 charges that were predominately felonies carrying substantial prison 4 sentences. If Carley rejected the plea agreement and proceeded to trial, she would have faced 5 those additional charges and would not have gained the benefit of reduced exposure at 6 sentencing. Faced with potentially substantial prison sentences as well as Carley’s recorded 7 conversations with Stojic regarding “hot” IDs, I am not persuaded that Carley would have 8 rejected the offer and proceeded to trial. For all these reasons, I conclude that Carley’s claim is 9 without merit and, thus, is not a substantial claim of ineffective assistance of counsel. Carley 10 cannot overcome the procedural default of Ground 1(b), and this claim must therefore be 11 dismissed. 12 3. Ground 1(c)—ineffective assistance: insufficient indictment 13 In Ground 1(c), Carley asserts that counsel was ineffective for failing to file a pre-trial 14 writ of habeas corpus challenging the charges in the indictment as legally insufficient.92 Carley 15 alleges that at least three of the unlawful possession of credit or debit cards counts were based on 16 prepaid cards that are not criminalized under the statute.93 Respondents argue that Carley pled 17 guilty to the amended indictment and, therefore, the language of the original charging document 18 is not relevant.94 The Nevada Court of Appeals rejected this claim: 19 Carley claimed her counsel was ineffective for failing to file a pretrial writ of habeas corpus arguing there was insufficient evidence presented at the grand jury 20 proceedings. Carley failed to demonstrate either deficiency or prejudice for this claim because the State presented evidence to support the grand jury’s probable 21 cause finding. See Sheriff, Washoe Cty. v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980). Therefore, the district court did not err in denying this claim.95 22 23
91 Padilla v. Kentucky, 559 U.S. 356, 372 (2010). 24 92 ECF No. 12 at 35. 25 93 Id. at 36–37. 26 94 ECF No. 45 at 13. 27 95 ECF No. 19 at 9. 28 1 The Nevada Court of Appeals’ determination that Carley failed to demonstrate deficiency 2 or prejudice was not an unreasonable application of Strickland. As noted by the Nevada Court of 3 Appeals, Carley did not demonstrate that there was a basis for objectively reasonable counsel to 4 object to the indictment as the State presented enough evidence to support the grand jury’s 5 probable cause finding. Counsel’s decision not to object does not fall “outside the wide range of 6 professionally competent assistance.”96 Further, Carley did not demonstrate a reasonable 7 probability that if her counsel challenged the charges of the indictment, she would have pled 8 differently and proceeded to trial. The state initially charged Carley with sixteen counts of 9 unlawful possession of credit or debit cards.97 As a result of plea negotiations, in the amended 10 information to which Carley entered a guilty plea, the prior sixteen counts of unlawful 11 possession of credit or debit cards were collapsed into a single count.98 Accordingly, Carley is 12 denied federal habeas relief for Ground 1(c).
13 4. Grounds 1(d)—ineffective assistance re: failure to pursue theory that Carley 14 did not possess items located at 1500 Karen Ave. 15 In Ground 1(d), Carley asserts that her counsel provided ineffective-assistance regarding 16 Carley’s residency of the apartment. Carley asserts that she was in custody and was not living at 17 the apartment for eleven days prior to the time that the search warrant was executed99 and 18 counsel was rendered ineffective for failing to pursue the defense theory that she did not possess 19 the items seized in the apartment.100 In her state habeas appeal, the Nevada Court of Appeals 20 rejected this theory: 21 Carley failed to demonstrate her counsel’s performance was deficient or resulting prejudice. Carley provided no factual basis to support this claim. Bare claims, such 22 as this one, are insufficient to demonstrate that a petitioner is entitled to relief. See Molina v. State, 120 Nev. 185, 192, 87 P.2d 533, 538 (2004) (a petitioner claiming 23
96 Strickland, 466 U.S. at 690. 24 97 ECF No. 13-25. 25 98 ECF No. 14-30. 26 99 ECF No. 12 at 38–39. 27 100 ECF No. 46 at 72. 28 counsel did not conduct an adequate investigation must specify what a more 1 thorough investigation would have uncovered); see also Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (explaining that bare and naked claims are 2 insufficient to demonstrate that a petitioner is entitled to relief).
3 Moreover, the search of the apartment revealed a large amount of documents containing Carley’s information and Carley was listed as a resident on 4 the rental insurance agreement. Under these circumstances, Carley failed to demonstrate a reasonable probability she would have insisted on going to trial and 5 would have refused to plead guilty had counsel conducted further investigation. Therefore, the district court did not err in denying this claim.101 6 7 The Nevada Court of Appeals’ determination that Carley failed to demonstrate deficiency 8 or prejudice was not an unreasonable application of Strickland. Defense counsel has a “duty to 9 make reasonable investigations or to make a reasonable decision that makes particular 10 investigations unnecessary.”102 In an ineffectiveness-of-counsel case, “a particular decision not 11 to investigate must be directly assessed for reasonableness in all the circumstances, applying a 12 heavy measure of deference to counsel’s judgments.”103 In assessing counsel’s investigation, the 13 court must conduct an objective review of counsel’s performance, measured for “reasonableness 14 under prevailing professional norms.” 104 This includes a context-dependent consideration of the 15 challenged conduct as seen “from counsel’s perspective at the time.”105 “Strategic choices made 16 after thorough investigation of law and facts relevant to plausible options are virtually 17 unchallengeable.”106 18 As the Nevada Court of Appeals noted, paperwork, including court records containing 19 Carley’s name and photographs of her were located at the apartment during the execution of the 20 search warrant.107 Carley was listed as an additional insured under the rental insurance 21
101 ECF No. 19 at 5–6. 22 102 Strickland, 466 U.S. at 691. 23 103 Id. 24 104 Id. at 688. 25 105 Id. at 689. See Wiggins v. Smith, 539 U.S. 510, 523 (2003). 26 106 Strickland, 466 U.S. at 690. 27 107 ECF No. 13-20 at 43. 28 1 agreement.108 She admitted to law enforcement that she used an ID that was located in the 2 apartment to purchase a vehicle.109 While she was in custody for separate probation violations, 3 Carley called Stojic on a recorded line and discussed getting rid of IDs and getting out of the 4 apartment.110 Moreover, while discussing a plea offer, counsel for Carley noted to the State that 5 Carley was in custody at the time that the search warrant was executed and that other individuals 6 had access to the apartment, which illustrates that counsel made reasonable investigation into this 7 theory of defense.111 Considering the amount of evidence linking Carley to the apartment and 8 the potential for prejudice if a jury became aware that Carley was in custody for a probation 9 violation, counsel’s decision not to pursue this theory was “reasonable under prevailing 10 professional norms.”112 11 Under these circumstances, as the Nevada Court of Appeals noted, Carley failed to 12 demonstrate that she would have pled differently and insisted on going to trial. It is unlikely that 13 further investigation would have led counsel to change her recommendation on the plea, as the 14 theory would not have likely resulted in a successful outcome at trial.113 So I deny Carley 15 habeas relief on Ground 1(d). 16 5. Ground 1(e)—ineffective assistance re: sentencing advice 17 In Ground 1(e), Carley asserts that her counsel was rendered ineffective because counsel 18 incorrectly advised her that she was not eligible for treatment as a habitual criminal at 19 sentencing.114 Carley further asserts that when she realized she was eligible to be sentenced 20 21
108 Id. at 20. 22 109 ECF No. 13-10 at 3. 23 110 Id. at 4. 24 111 ECF No. 14-2. 25 112 Strickland, 466 U.S. at 690. 26 113 Hill, 474 U.S. at 59. 27 114 ECF No. 12 at 40. 28 1 under the small habitual criminal provision, she informed her attorney that she wanted her plea 2 withdrawn.115 In her state habeas appeal, the Nevada Court of Appeals held: 3 Carley claimed her counsel was ineffective for advising her she was not eligible for adjudication as a habitual criminal. Carley failed to demonstrate her counsel’s 4 performance was deficient or resulting prejudice. In the guilty plea agreement, Carley acknowledged discussing her case with her counsel and acknowledged she 5 faced adjudication as a habitual criminal. In addition, at the plea canvass the district court advised Carley that she was subject to adjudication as a habitual criminal, 6 informed Carley of the sentencing range, and Carley acknowledged that she understood. Carley failed to demonstrate a reasonable probability she would have 7 refused to plead guilty and would have insisted on going to trial had she had further discussions with her counsel regarding adjudication as a habitual criminal. 8 Therefore, the district court did not err in denying this claim.116 9 10 The Nevada Court of Appeals’ determination that Carley failed to demonstrate prejudice 11 was not an unreasonable application of Strickland. The assertion that counsel advised Carley 12 that she was not eligible as a habitual criminal is belied by the record. The guilty-plea agreement 13 signed by Carley set forth that the State retained the right to argue for the small habitual criminal 14 enhancement and Carley affirmed that the elements, consequences, rights, and waiver of rights in 15 the guilty plea agreement were thoroughly explained to her by her attorney.117 In addition, at the 16 plea canvass, the state district court advised Carley that “the State will retain the right to argue 17 including the small habitual criminal enhancement, but not the large enhancement,” and further 18 explained that if Carley was sentenced under the small habitual criminal enhancement, the state 19 district court “must sentence [Carley] to a term of imprisonment of 5 to 20 years.”118 Carley 20 affirmed to the state district court that she understood the sentencing range.119 The Nevada 21 Court of Appeals reasonably determined that Carley failed to demonstrate a reasonable 22 23
115 ECF No. 15-2 at 7. 24 116 ECF No. 19 at 4–5. 25 117 ECF No. 15 at 2, 7. 26 118 ECF No. 14-21 at 16–18. 27 119 Id. 28 1 probability that but for counsel’s alleged failure to advise Carley that she was eligible for 2 habitual criminal sentencing, she would have insisted on going to trial. 3 In order to prevail on an ineffective-assistance-of-counsel claim, Carley must show that 4 her counsel acted both deficiently and resulting prejudice. However, I need not “address both 5 components of the inquiry” if there is an “insufficient showing on one.”120 Because Carley has 6 not sufficiently demonstrated prejudice, the Strickland inquiry need not continue and I deny 7 Carley habeas relief on Ground 1(e). 8 6. Ground 2—knowing, voluntary, intelligent guilty plea 9 In Ground 2, Carley asserts that the State presented a plea deal that was contingent on 10 both Carley and Stojic accepting the plea agreement121 and that her counsel and Stojic’s counsel 11 coerced her into accepting the deal because they told her she would lose at trial if she did not 12 accept the plea. Carley further asserts that Stojic’s counsel stated that he would “blame 13 everything on [Carley]” at trial.122 She alleges that her counsel’s inadequate advice prevented 14 her from making an informed choice.123 On direct appeal, the Nevada Supreme Court rejected 15 these arguments: 16 [Carley] contends that she was coerced into the plea because her counsel told her that she would lose if she went to trial and her codefendant’s counsel informed her 17 that he would blame the offenses on her if she went to trial. The district court conducted an evidentiary hearing, noted that appellant had denied any coercion 18 during the plea canvass, and found that her claim of coercion was belied by the record and her plea was entered knowingly and voluntarily. The written plea 19 agreement and transcripts of the plea canvass and evidentiary hearing support the district court’s finding that appellant’s plea was voluntary. See Crawford, 117 Nev. 20 at 722, 30 P.3d at 1126 (“A thorough plea canvass coupled with a detailed, consistent, written plea agreement supports a finding that the defendant entered the 21 plea voluntarily, knowingly, and intelligently.”). Thus, we conclude that the district court did not abuse its discretion by denying appellant’s motion to withdraw her 22 guilty plea.124 23
120 Strickland, 466 U.S. at 690. 24 121 ECF No. 12 at 43. 25 122 Id. at 44. 26 123 ECF No. 46 at 80. 27 124 ECF No. 15-20 at 3. 28 1 In Carley’s state habeas appeal, the Nevada Court of appeals agreed with the Nevada 2 Supreme Court and held that “Carley cannot demonstrate either deficiency or prejudice for this 3 claim because the Nevada Supreme Court has already considered the underlying claim and 4 concluded Carley was not coerced into pleading guilty.”125 I find that the state appellate courts’ 5 rejection of Carley’s claim was neither contrary to nor an unreasonable application of clearly 6 established law as determined by the United States Supreme Court. The federal constitutional 7 guarantee of due process of law requires that a guilty plea be knowing, intelligent, and 8 voluntary.126 The longstanding test for determining the validity of a guilty plea is “whether 9 the plea represents a voluntary and intelligent choice among the alternative courses of action 10 open to the defendant.”127 “The voluntariness of [a petitioner’s] plea can be determined only by 11 considering all of the relevant circumstances surrounding it.”128 Every defendant involved in 12 plea negotiations suffers the threat of conviction (often of greater charges or with greater 13 penalty) and must face such “difficult choices.”129 14 Here, Carley faced the difficult choice of pleading guilty in exchange for the State 15 dropping 59 charges against her and her co-defendant and to receive the benefit of reduced 16 exposure at sentencing. As noted by the Nevada Supreme Court, Carley affirmed in the plea 17 agreement and at the plea canvass that her plea was not coerced and that she discussed possible 18 defenses with counsel.130 At the evidentiary hearing, the state district court held that Carley’s 19 allegations that she was coerced “are belied by the record that at any point she could have 20 stopped the plea and said: Hold on, I want to go to trial,” and that her plea “was freely and 21
22 125 ECF No. 19 at 5. 23 126 See Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969). 24 127 Hill, 474 U.S. at 56. 25 128 Brady, 397 U.S. at 749. 26 129 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). 27 130 ECF Nos. 14-31 at 22, 15 at 7. 28 1 voluntarily entered into.”131 “Solemn declarations in open court carry a strong presumption of 2 verity.”132 The record demonstrates that Carley understood the consequences and benefits of her 3 guilty plea and that she entered the guilty plea knowingly, intelligently, and voluntarily. 4 Carley’s claim lacks merit given the high burden of AEDPA and based on the relevant 5 circumstances surrounding her plea, the state appellate courts reasonably concluded that Carley 6 failed to establish that her plea was not knowing, intelligent, or voluntary. Accordingly, I deny 7 Carley habeas relief on Ground 2. 8 C. Certificate of Appealability 9 The right to appeal from the district court’s denial of a federal habeas petition requires a 10 certificate of appealability. To obtain that certificate, the petitioner must make a “substantial 11 showing of the denial of a constitutional right.”133 “Where a district court has rejected the 12 constitutional claims on the merits,” that showing “is straightforward: The petitioner must 13 demonstrate that reasonable jurists would find the district court’s assessment of the constitutional 14 claims debatable or wrong.”134 Because I have rejected petitioner’s constitutional claims on their 15 merits and she has not shown that this assessment of her claims is debatable or wrong, I find that 16 a certificate of appealability is unwarranted in this case. . . . 17 18 19 20 21 22 23 24 131 ECF No. 15-9 at 12. 25 132 Blackledge v. Allison, 431 U.S. 63, 74 (1977). 26 133 28 U.S.C. § 2253(c). 27 134 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077– 28 79 (9th Cir. 2000). 1 Conclusion 2 IT IS THEREFORE ORDERED that the petition [ECF No. 12] is DENIED, and because 3}, reasonable jurists would not find my decision to deny this petition to be debatable or wrong, a 4| certificate of appealability is DENIED. 5 The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS 6 CASE. 7 Dated: March 17, 2021
9 US. DistrictJudge Jenifer A. Dorsey 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24