Clark v. Neven

171 F. Supp. 3d 1045, 2016 WL 1169445, 2016 U.S. Dist. LEXIS 36989
CourtDistrict Court, D. Nevada
DecidedMarch 21, 2016
DocketCase No. 2:11-cv-00585-KJD-PAL
StatusPublished

This text of 171 F. Supp. 3d 1045 (Clark v. Neven) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Neven, 171 F. Supp. 3d 1045, 2016 WL 1169445, 2016 U.S. Dist. LEXIS 36989 (D. Nev. 2016).

Opinion

ORDER

KENT J. DAWSON, United States District Judge

Before the court are the amended petition for writ of habeas corpus (# 35), petitioner’s motion for partial dismissal (# 58), which contains the current version of ground 2, respondents’ answer (# 73), and petitioner’s reply (# 77). The court finds that petitioner is not entitled to relief, and the court denies the petition.

After a jury trial in state district court, petitioner was convicted of two counts of sexual assault with a minor under the age of 16 and one count of preventing or dissuading a witness or victim from testifying and/or producing evidence; two counts of statutory sexual seduction were stricken. Ex. 28 (# 37). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 65 (# 40).

Petitioner then filed a post-conviction habeas corpus petition in the state district court. Ex. 71 (# 41). The state district court denied the petition. Ex. 73 (decision at hearing) (# 42); Ex. 79 (written order) (# 42). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 80 (# 42).

Petitioner then commenced this action. The court • directed petitioner to file an amended petition that was not rambling and disjointed. The court dismissed the action when petitioner filed nothing. Petitioner appealed. The court of appeals directed appointment of counsel. This court granted petitioner relief from the judgment, and the amended petition followed. After litigation on respondents’ motion to dismiss (# 46), this court dismissed ground 8 of the amended petition because it did not relate back to the original petition and was untimely. The court also noted that part of ground 2 was unexhausted. Petitioner filed a motion for partial dismissal (# 58) that contains a rewritten ground 2.

Reasonable jurists would not find the court’s conclusions regarding ground 8 to be debatable or wrong, and the court will not issue a certificate of appealability for ground 8.

Congress has limited the circumstances in which a federal court can grant relief to a petitioner who is in custody pursuant to a judgment of conviction of a state court.

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). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court’s decision “was contrary to” federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); or that it “involved an unreasonable application of’ [1050]*1050such law, § 2254(d)(1); or that it “was based on an unreasonable determination of the facts” in light of the record before the state court, § 2254(d)(2).

Richter, 562 U.S. at 100, 131 S.Ct. 770. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” Id. (citation omitted). “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.” Id. (citation omitted).

[Evaluating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.

Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

Richter, 562 U.S. at 102, 131 S.Ct. 770.

As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairmind-ed disagreement.

Id. at 103, 131 S.Ct. 770.

Ground 1 is a claim that the state district court denied petitioner his right to represent himself. Petitioner made two such requests. In its order affirming the judgment of conviction on direct appeal, the Nevada Supreme Court gave the relevant background and held:

Clark raises eight issues on appeal. First, Clark contends that the district court erred by denying his motion for self-representation. Specifically, he argues that his motion was timely and that the district court erred by denying his motion on the basis that he did not understand the charges against him or his possible defenses. In addition, he argues that because the district court denied his motion, he was unable to cross-examine witnesses, present the defense he wanted, testify fully, call the victim’s aunt as a witness, be present during bench conferences, and make objections for the record.
Clark made two separate motions for self-representation. The first came on the second day of trial. This oral motion was made after jury selection but prior to opening statements. Clark requested that he be allowed to make the opening and closing statements and to cross-examine the victim and the victim’s mother. He requested that his counsel cross-examine the remaining witnesses. The district court denied the motion as untimely and because Clark was requesting a hybrid form of representation. The second motion for self-representation occurred on the third day of trial. In this written motion, Clark requested that he be allowed to conduct the entire trial. Clark argued that counsel misrepresented facts in the opening statement and was not asking all of the questions that Clark wanted asked of witnesses. The district court conducted a canvass pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and determined that Clark did not understand the charges against him, the possible defenses, or the evidentiary rules. The district court also found that [1051]*1051the request was untimely.

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Yarborough v. Alvarado
541 U.S. 652 (Supreme Court, 2004)
Williams v. Taylor
529 U.S. 362 (Supreme Court, 2000)
Carey v. Musladin
549 U.S. 70 (Supreme Court, 2006)
Harrington v. Richter
131 S. Ct. 770 (Supreme Court, 2011)
United States v. Eric Boyd
86 F.3d 719 (Seventh Circuit, 1996)
Tanksley v. State
946 P.2d 148 (Nevada Supreme Court, 1997)
Jacobs v. State
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Bluebook (online)
171 F. Supp. 3d 1045, 2016 WL 1169445, 2016 U.S. Dist. LEXIS 36989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-neven-nvd-2016.