1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DAVID VAN DUKE, Case No.: 2:13-cv-00688-APG-BNW
4 Petitioner Order
5 v.
6 JERRY HOWELL, et al.,
7 Respondents.
9 David Van Duke, a Nevada prisoner, filed a petition for a writ of habeas corpus under 28 10 U.S.C. § 2254. I deny Duke’s habeas petition, deny him a certificate of appealability, and direct 11 the Clerk of the Court to enter judgment accordingly. 12 I. BACKGROUND 13 Duke’s convictions are the result of events that occurred in Clark County, Nevada on 14 June 26, 2007. ECF No. 9-12. In its order affirming Duke’s convictions, the Nevada Supreme 15 Court described the crime, as revealed by the evidence at Duke’s trial, as follows: 16 Officer Fullington testified that he initially stopped Duke for an expired license plate. When Duke and the passenger of the vehicle began looking back at Officer 17 Fullington in an “unusual, fidgety manner,” Officer Fullington called for backup. Officer Fullington told Duke and the passenger to put their hands on the steering 18 wheel and dashboard, respectively. When Duke and the passenger continued to act in an unusual manner, Officer Fullington pulled out his taser, turned the taser on, 19 held the taser down towards his side, and told Duke to “not do anything” or he would tase Duke. Officer Hirschi responded to the call for backup, exited his 20 vehicle, and began to walk towards Officer Fullington. At that time, Duke sped off in his car. Officer Hirshi and Officer Fullington returned to their patrol vehicles 21 and began pursuit of Duke with their lights and sirens on. Duke drove into an apartment complex parking lot, followed by Officer Hirshi, while Officer 22 Fullington drove to the next entrance to the apartment complex to block Duke’s exit. Because he was concerned that Duke was going to ram his car, Officer 23 Fullington exited his vehicle. Duke stopped his car before ramming Officer Fullington’s patrol car and was boxed in by Officer Hirshi. Officer Fullington saw 1 a beer bottle being thrown out of the passenger’s window and what appeared to be a bar of soap being thrown out of Duke’s window. The beer bottle and “bar of 2 soap” were collected, and a field test and laboratory test determined that the “bar of soap” was cocaine and weighed 36.34 grams. 3 4 ECF No. 10-11 at 3. 5 On January 15, 2008, following a jury trial, Duke was found guilty of “stop required on 6 signal of police officer,” trafficking in a controlled substance of 28 grams or more, and 7 transporting a controlled substance. ECF No. 9-16. Duke was sentenced to a term of 13 to 60 8 months for “stop required on signal of a police officer,” a consecutive term of 10 to 25 years for 9 trafficking, and a concurrent term of 13 to 60 months for transporting a controlled substance. 10 ECF No. 10. The Nevada Supreme Court affirmed Duke’s convictions. ECF No. 10-11. 11 Duke, acting in pro se, filed a post-conviction state habeas petition on January 27, 2010, 12 and an amended petition on April 15, 2010. ECF Nos. 10-20, 10-23. With the assistance of 13 counsel, Duke filed a supplemental post-conviction state habeas petition on January 5, 2011. 14 ECF No. 11-2. After an evidentiary hearing, see ECF Nos. 11-12, 11-14, 11-15, the state district 15 court denied Duke’s post-conviction state habeas petition. ECF No. 11-22. The Nevada Supreme 16 Court affirmed the denial. ECF No. 12-21. 17 Duke, acting in pro se, dispatched a post-conviction federal habeas petition on or about 18 April 18, 2013. ECF No. 6. The respondents moved to dismiss the petition on September 5, 2013. 19 ECF No. 8. Duke moved to amend his petition on September 30, 2013; moved for a stay on 20 October 30, 2013; moved for leave to amend on October 30, 2013; and supplemented his petition 21 on January 28, 2014. ECF Nos. 16, 18, 19, 24. 22 While his federal habeas petition was still pending, Duke, acting in pro se, filed a second 23 post-conviction state habeas petition and two supplements to the petition on December 26, 2013. 1 ECF No. 32-1, 32-3, 32-4. The state district court dismissed Duke’s second post-conviction state 2 habeas petition as untimely under Nev. Rev. Stat. § 34.726 and successive under Nev. Rev. Stat. 3 § 34.810 on March 31, 2014. ECF No. 32-8. The Nevada Supreme Court affirmed the dismissal 4 on September 16, 2014. ECF No. 32-18. 5 On June 30, 2014, I denied Duke’s motion to amend the petition, denied Duke’s motion
6 for stay without prejudice, and granted the respondents’ motion to dismiss, in part. ECF No. 25. 7 Specifically, I dismissed Ground One as conclusory and found portions of Grounds Two and 8 Three to be unexhausted. Id. I ordered Duke to either abandon his unexhausted grounds for 9 relief and proceed on the exhausted grounds, dismiss his petition without prejudice in order to 10 return to state district court to exhaust his unexhausted claims, or file a motion for stay. Id. 11 Duke moved for a stay and thereafter moved to lift the stay, asserting that he had 12 exhausted the portions of the grounds that I previously found unexhausted due to the Nevada 13 Supreme Court’s order filed September 16, 2014, which affirmed the dismissal of Duke’s second 14 post-conviction state habeas petition. ECF No. 26, 28. I granted the motion for stay and denied
15 the motion to lift the stay as moot on March 19, 2015. ECF No. 33. However, because some of 16 the claims I found to be unexhausted in my June 30, 2014 order may have been procedurally 17 defaulted in light of the Nevada Supreme Court’s September 16, 2014 order, I deferred the stay 18 until the parties filed supplemental briefing. Id. The respondents filed a supplemental brief, and 19 Duke filed his response. ECF No. 38, 39. 20 Following supplemental briefing, I explained that Duke’s second state habeas petition 21 exhausted only claims that were not part of Duke’s federal petition and, with one possible 22 exception, none of the claims I previously found unexhausted. ECF No. 41. I ordered that to the 23 extent Ground Three asserts a substantive sufficiency-of-the-evidence claim as to the 1 transportation conviction, that part of Ground Three was dismissed as procedurally barred. Id. 2 Accordingly, I vacated my prior order deferring entry of the stay, denied Duke’s motion for stay 3 without prejudice, and ordered Duke to either file a motion to dismiss seeking partial dismissal 4 only of the unexhausted claims, a motion to dismiss the entire petition without prejudice in order 5 to return to state court to exhaust the unexhausted claims, or a motion for other appropriate relief.
6 Id. Duke filed a motion indicating that he wished to dismiss the unexhausted claims. ECF No. 7 42. I granted the motion. ECF No. 43. 8 The respondents filed an answer to the remaining grounds in Duke’s petition on May 16, 9 2018. ECF No. 50. Duke moved for reconsideration of my prior decision that a portion of 10 Ground Two of his petition was unexhausted. ECF No. 51. I denied that motion. ECF No. 54. 11 Duke filed a reply in support of his petition on June 27, 2018. ECF No. 52. Duke then filed a 12 supplement to his reply on October 22, 2018, which was termed a “reply on collect memory of 13 preliminary hearing that would aid me in a defense for writ of habeas corpus.” ECF No. 55. 14 II. STANDARD OF REVIEW
15 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas 16 corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): 17 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 18 was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 19 (1) resulted in a decision that was contrary to, or involved an unreasonable application 20 of, clearly established Federal law, as determined by the Supreme Court of the United States; or 21 (2) resulted in a decision that was based on an unreasonable determination of the facts 22 in light of the evidence presented in the State court proceeding.
23 1 A state court decision is contrary to clearly established Supreme Court precedent, within the 2 meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing 3 law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that 4 are materially indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 5 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing
6 Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application 7 of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if 8 the state court identifies the correct governing legal principle from [the Supreme] Court’s 9 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75 10 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause requires the state 11 court decision to be more than incorrect or erroneous. The state court’s application of clearly 12 established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) 13 (internal citation omitted). 14 The Supreme Court of the United States has instructed that “[a] state court’s
15 determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded 16 jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 17 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The 18 Supreme Court has stated “that even a strong case for relief does not mean the state court’s 19 contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also 20 Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” 21 and “highly deferential standard for evaluating state-court rulings, which demands that state- 22 court decisions be given the benefit of the doubt” (internal quotation marks and citations 23 omitted)). 1 III. DISCUSSION 2 A. Ground Two 3 In Ground Two, Duke argues that his federal constitutional rights were violated when his 4 trial counsel failed to present a viable defense, which according to Duke is demonstrated by his 5 trial counsel’s statement during the post-conviction evidentiary hearing that it was an “open and
6 shut case.” ECF No. 6 at 6. Duke also argues that his trial counsel failed to obtain and provide 7 him with a copy of the preliminary hearing transcript and perjured himself when he informed the 8 state district court that he had a copy of the transcript because the preliminary hearing transcript 9 did not exist. Id. at 7-8. The respondents argue that Duke does not state what sort of defense his 10 trial counsel should have developed or what information from the preliminary hearing transcript 11 could have aided him in developing a defense. ECF No. 50 at 4. In the supplement to his reply, 12 it appears that Duke believes that Officer Fullington could have been impeached at the trial with 13 his preliminary hearing testimony, which provided that Duke, the driver of the vehicle, was 14 cooperative while the passenger, Duke’s brother, was the one causing problems during the initial
15 stop. ECF No. 55 at 3. In Duke’s first state habeas appeal, the Supreme Court of Nevada held: 16 “Duke argues that the district court erred by denying his petition because counsels’ 17 ineffectiveness denied him equal protection. Because trial and appellate counsel were not 18 ineffective, we conclude this claim is without merit.” ECF No. 12-21 at 4. 19 Duke’s preliminary hearing was held in Justice Court, Las Vegas Township on 20 November 26, 2007. ECF No. 9-1 at 3. Duke and his trial counsel were present at the 21 preliminary hearing, and Officer John Fullington was the only witness to testify. Id. On January 22 15, 2008, before the trial began, the state district court minutes reflect a discussion about the 23 preliminary transcript: 1 Deft. stated he was to have received a motion for discovery. [Duke’s trial counsel] stated he has discussed the facts of the case with the Deft.; Deft. would like 2 additional discovery as to what was testified to at the Preliminary hearing. [The State] stated he believes the information was provided. Deft. stated it was not 3 received. [Duke’s trial counsel] stated he is in possession of the information. Court advised the Deft. his counsel has the information and will discuss it with him. 4 5 ECF No. 9-8 at 8; see also ECF No. 9-13 at 18-19 (transcript of the exchange in which Duke’s 6 trial counsel stated that he has what the State provided under the applicable discovery rules). 7 Following the trial, Duke moved for production of transcripts and for production of 8 documents on April 1, 2009 and May 12, 2009, respectively. ECF No. 10-9, 10-14. The state 9 district court granted Duke’s motion for production of documents on May 27, 2009. ECF No. 9-8 10 at 15. The state district court ordered Duke’s trial counsel to deliver Duke’s file to Duke within 11 two weeks. Id. On July 29, 2009, Duke filed a motion to compel, explaining that his trial 12 counsel did not provide the preliminary transcript. ECF No. 10-17. A hearing was held on 13 August 12, 2009. ECF No. 9-8 at 16. It appears that Duke’s trial counsel provided Duke his file 14 before the hearing, but that file did not contain the preliminary transcript. See id. The state 15 district court noted that “it does not appear the transcripts from the preliminary hearing . . . 16 [were] prepared.” Id. On September 2, 2009, Duke’s trial counsel informed the state district 17 court that, indeed, “transcripts for the preliminary hearing . . . were not prepared.” Id. at 19. 18 Duke’s trial counsel testified at the post-conviction evidentiary hearing that Duke’s case 19 did not contain “an overly complex factual situation” and “was a fairly straight forward case.” 20 ECF No. 11-14 at 4, 6. He also explained that he did not remember discussing with Duke the 21 waiver of Duke’s speedy trial rights to enable time for the preliminary hearing transcripts to be 22 filed. Id. at 19-20. In fact, Duke’s trial counsel did not remember the preliminary hearing at the 23 1 time of the post-conviction evidentiary hearing, so he was unable to answer whether having the 2 preliminary hearing transcripts would have been beneficial or not at the trial. Id. at 20. 3 In order to determine whether Duke’s trial counsel was deficient for not obtaining the 4 preliminary hearing transcripts, Strickland v. Washington must be assessed. In Strickland, the 5 Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of
6 counsel, requiring the petitioner to demonstrate (1) that the attorney’s “representation fell below 7 an objective standard of reasonableness,” and (2) that the attorney’s deficient performance 8 prejudiced the defendant such that “there is a reasonable probability that, but for counsel’s 9 unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 668, 10 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a 11 “strong presumption that counsel’s conduct falls within the wide range of reasonable 12 professional assistance.” Id. at 689. The petitioner’s burden is to show “that counsel made errors 13 so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 14 Sixth Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not enough for
15 the habeas petitioner “to show that the errors had some conceivable effect on the outcome of the 16 proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a 17 fair trial, a trial whose result is reliable.” Id. at 687. 18 Where a state district court previously adjudicated the claim of ineffective assistance of 19 counsel under Strickland, establishing that the decision was unreasonable is especially difficult. 20 See Harrington, 562 U.S. at 104-05. In Harrington, the Supreme Court of the United States 21 instructed: 22 Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and 23 § 2254(d) are both “highly deferential,” [Strickland, 466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when 1 the two apply in tandem, review is “doubly” so, Knowles[ v. Mirzayance, 556 U.S. 111, 123 (2009)]. The Strickland standard is a general one, so the range of 2 reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under 3 Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether 4 there is any reasonably argument that counsel satisfied Strickland’s deferential standard. 5 Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) 6 (“When a federal court reviews a state court’s Strickland determination under AEDPA, both 7 AEDPA and Strickland’s deferential standards apply; hence, the Supreme Court’s description of 8 the standard as ‘doubly deferential.’”). 9 In analyzing a claim of ineffective assistance of counsel under Strickland, a court may 10 first consider either the question of deficient performance or the question of prejudice; if the 11 petitioner fails to satisfy one element of the claim, the court need not consider the other. See 12 Strickland, 466 U.S. at 697. 13 It is unclear why Duke’s trial counsel did not request to have the preliminary hearing 14 transcribed in case the transcript became necessary for impeachment purposes at Duke’s trial. 15 However, it is also unclear what impeachment value the preliminary hearing transcript 16 possessed. Duke maintains that Officer Fullington testified at the preliminary hearing that Duke 17 was cooperative during the vehicle stop while his passenger was the one causing problems. ECF 18 No. 55 at 3. This testimony, if true, varies slightly from Officer Fullington’s testimony at trial. 19 See ECF No. 9-13 at 47, 50-51 (testimony of Officer Fullington at trial that both Duke and the 20 passenger were “acting in a . . . unusual fidgety manner” after he stopped their vehicle); see also 21 ECF No. 9-14 at 26 (testimony of Officer Fullington at trial that Duke and the passenger “were 22 looking back towards [him], acting in a very unusual manner”). This alleged discrepancy 23 between Officer Fullington’s testimony at the preliminary hearing and the trial is not especially 1 significant. Indeed, because Duke’s demeanor during the initial stop is comparatively immaterial 2 to his later actions which formed the basis of his convictions—leaving the traffic stop and 3 attempting to dispose of 36.34 grams of cocaine from the driver-side window—the impeachment 4 value of the alleged discrepancy is weak. See Sully v. Ayers, 725 F.3d 1057, 1073 (9th Cir. 2013) 5 (finding that the defendant did “not show[ ] that counsel was ineffective for failing to investigate
6 and present evidence to impeach [a witness’s] statement” because “the supposedly impeaching 7 evidence that counsel failed to uncover and present . . . either had no impeachment value or was 8 inculpatory”); cf. Nixon v. Newsome, 888 F.2d 112, 115-16 (11th Cir. 1989) (holding that the 9 defendant’s trial counsel was ineffective when he “failed to follow up on his cross-examination 10 [of the witness] by confronting her with her [prior] statements” because there were “glaring and 11 crucial discrepancies between [the witness’s] testimony at the two trials” and her testimony was 12 crucial). Thus, it cannot be determined that Duke’s trial counsel was deficient in failing to have 13 the preliminary transcript available for impeachment purposes or that, if there was a deficiency, 14 Duke was prejudiced. Strickland, 466 U.S. at 688, 694.1
15 Turning to Duke’s next contention that his trial counsel failed to provide him with the 16 preliminary hearing transcripts, it is clear from the record that Duke was never provided with the 17 transcripts. However, that is simply because they were never prepared. There was no active 18 concealment of the transcripts by Duke’s trial counsel. Duke asserts that his trial counsel 19
20 1 Duke also contends that the preliminary hearing transcript should be construed as favorable evidence that should have been turned over by the State under Brady v. Maryland, 373 21 U.S. 83 (1963). ECF No. 24 at 2. The Supreme Court held in Brady that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the 22 evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. However, the State did not suppress the preliminary 23 transcripts. Rather, the preliminary transcripts were never requested by either party and, therefore, never prepared. 1 misrepresented the fact that he had copies of the preliminary hearing transcripts; however, that 2 accusation does not appear to be entirely accurate. Duke’s trial counsel appears to have only 3 acknowledged receipt generally of the State’s file under the applicable discovery rules, not the 4 preliminary hearing transcript specifically. See ECF No. 9-8 at 8; ECF No. 9-13 at 18-19. 5 Although I conclude that Duke’s trial counsel was not deficient in not providing the preliminary
6 hearing transcripts because none existed, I do note that Duke’s trial counsel could have 7 communicated with Duke more effectively. 8 Finally, I turn to Duke’s assertion that his trial counsel did not present a viable defense, 9 which was based on trial counsel’s statement at the post-conviction evidentiary hearing that 10 Duke’s case “was a fairly straight forward case.” ECF No. 11-14 at 4, 6. This statement alone 11 does not support a finding that Duke’s trial counsel failed to present a viable defense. In fact, a 12 review of the closing argument demonstrates that trial counsel’s theory of defense was that 13 Officer Fullington’s testimony was the only evidence supporting the fact that the disposed 14 cocaine came from the vehicle Duke was driving or, alternatively, that the passenger disposed of
15 the cocaine, not Duke. See ECF No. 9-14 at 44-46. 16 Accordingly, based on the foregoing, the Supreme Court of Nevada’s ruling that Duke’s 17 trial counsel was not ineffective (see ECF No. 12-21 at 4) was not contrary to, or an 18 unreasonable application of, clearly established federal law as determined by the Supreme Court, 19 and was not based on an unreasonable determination of the facts in light of the evidence. See 28 20 U.S.C. § 2254(d). I deny Duke habeas corpus relief with respect to Ground Two. 21 B. Ground Three 22 In Ground Three Duke argues that his federal constitutional rights were violated when his 23 appellate counsel failed to raise a claim in his direct appeal that his convictions for trafficking in 1 a controlled substance and transport of a controlled substance violate double jeopardy. ECF No. 2 6 at 11. The respondents argue that Duke’s appellate counsel was not ineffective because 3 trafficking can be proven without proving the elements of transportation—here, that Duke 4 possessed a specific quantity of cocaine—and transportation can be proven without proving 5 elements of trafficking—here, that Duke transported cocaine, regardless of quantity. ECF No. 50
6 at 7. 7 In Duke’s first state habeas appeal, the Supreme Court of Nevada held: 8 Duke argues that the district court erred by denying his claim that appellate counsel was ineffective for failing to argue that his dual convictions for transportation of a 9 controlled substance and trafficking in a controlled substance violated double jeopardy. The district court determined that this claim lacked merit. Because 10 neither statute expressly allows for or prohibits multiple convictions, see NRS 453.321, NRS 453.3385, and each offense, as charged, requires proof of an element 11 that the other does not, the Double Jeopardy Clause is not implicated. See Jackson v. State, 128 Nev. ___, ___, ___ P.3d ___, ___ (2012) (Adv. Op. No. 55, December 12 6, 2012). Therefore, appellate counsel was not deficient and the district court did not err by denying this claim. 13 14 ECF No. 12-21 at 3-4. 15 In order to prevail on an ineffective assistance of appellate counsel claim, Duke “must 16 first show that his counsel was objectively unreasonable . . . in failing to find arguable issues on 17 appeal—that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a 18 merits brief raising them.” Smith v. Robbins, 528 U.S. 259, 285 (2000). If Duke is successful in 19 meeting that burden, “he then has the burden of demonstrating prejudice. That is, he must show 20 a reasonable probability that, but for counsel’s unreasonable failure to file a merits brief, he 21 would have prevailed on his appeal.” Id. 22 In order to determine whether Duke’s appellate counsel acted objectively unreasonably in 23 failing to raise a double jeopardy claim, I must first assess whether there the Double Jeopardy 1 Clause was violated. The Fifth Amendment’s Double Jeopardy Clause prohibits multiple 2 punishments for the same offense. U.S. Const. amend. V. The Double Jeopardy Clause provides 3 three related protections: (1) it prohibits a second prosecution for the same offense after 4 acquittal; (2) it prohibits a second prosecution for the same offense after conviction; and (3) it 5 prohibits multiple punishments for the same offense. United States v. Wilson, 420 U.S. 332, 343
6 (1975). “[T]he final component of double jeopardy—protection against cumulative 7 punishments—is designed to ensure that the sentencing discretion of courts is confined to the 8 limits established by the legislature.” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“Because the 9 substantive power to prescribe crimes and determine punishments is vested with the 10 legislature, . . . the question under the Double Jeopardy Clause whether punishments are 11 ‘multiple’ is essentially one of legislative intent.”). 12 The “same-elements” test established in Blockburger v. United States, 284 U.S. 299 13 (1932) is used to determine whether multiple prosecutions or multiple punishments involve the 14 same offense. United States v. Dixon, 509 U.S. 688, 696 (1993). The test “inquires whether each
15 offense contains an element not contained in the other; if not, they are the ‘same offence’ and 16 double jeopardy bars additional punishment and successive prosecution.” Id.; see also Ball v. 17 United States, 470 U.S. 856, 861 (1985) (“The assumption underlying the Blockburger rule is 18 that Congress ordinarily does not intend to punish the same offense under two different 19 statutes.”). “Conversely, ‘[d]ouble jeopardy is not implicated so long as each violation requires 20 proof of an element which the other does not.’” Wilson v. Belleque, 554 F.3d 816, 829 (9th Cir. 21 2009) (quoting United States v. Vargas-Castillo, 329 F.3d 715, 720 (9th Cir. 2003). “‘If each 22 [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, 23 notwithstanding a substantial overlap in the proof offered to establish the crimes.’” Id. (quoting 1 Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)). The “same act or transaction” can 2 “constitute[ ] a violation of two distinct statutory provisions.” Blockburger, 284 U.S. at 304. 3 Duke was convicted of trafficking in a controlled substance in violation of Nevada 4 Revised Statutes § 453.3385 and transporting a controlled substance in violation of § 453.321. 5 ECF No. 10. Section 453.3385(1) provides that “a person who knowingly or intentionally sells,
6 manufactures, delivers or brings into this State or who is knowingly or intentionally in actual or 7 constructive possession of . . . any controlled substance which is listed in schedule I, except 8 marijuana . . . shall be punished” if the amount “is 4 grams or more.” And § 453.321(1) provides 9 that “it is unlawful for a person to: (a) [i]mport, transport, sell, exchange, barter, supply, 10 prescribe, dispense, give away or administer a controlled or counterfeit substance; (b) 11 [m]anufacture or compound a counterfeit substance; or (c) [o]ffer or attempt to do any act set 12 forth in paragraph (a) or (b).” Section 453.321(2)-(5) outlines the punishment for transporting a 13 controlled substance, which is based on the type of controlled substance transported. 14 The Supreme Court of Nevada relied on the correct federal law standards and applied
15 them reasonably to the facts of Duke’s case. See ECF No. 12-21 at 3 (“[E]ach offense, as 16 charged, requires proof of an element that the other does not”). Trafficking requires at least four 17 grams of a controlled substance. Nev. Rev. Stat. § 453.3385. There is no quantity requirement 18 for transportation of a controlled substance. See Nev. Rev. Stat. § 453.321. Similarly, 19 transportation of a controlled substance requires transportation. See id. There is no 20 transportation requirement for trafficking; in fact, trafficking is accomplished by selling, 21 manufacturing, delivering, or possessing a controlled substance. See Nev. Rev. Stat. § 453.3385. 22 Because trafficking of a controlled substance and transporting a controlled substance each 23 “contains an element not contained in the other,” Dixon, 509 U.S. at 696, there is no Double 1 Jeopardy Clause violation, and as such, Duke’s appellate counsel “was [not] objectively 2 unreasonable” for not including a Double Jeopardy Clause violation in Duke’s direct appeal. 3 Smith, 528 U.S. at 285. Accordingly, the Supreme Court of Nevada’s ruling was not contrary to, 4 or an unreasonable application of, clearly established federal law as determined by the Supreme 5 Court, and was not based on an unreasonable determination of the facts in light of the evidence.
6 See 28 U.S.C. § 2254(d). I deny Duke habeas corpus relief with respect to Ground Three. 7 IV. CERTIFICATE OF APPEALABILITY 8 The standard for the issuance of a certificate of appealability requires a “substantial 9 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). The Supreme Court of the 10 United States has interpreted 28 U.S.C. § 2253(c) as follows: 11 Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must 12 demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. 13
14 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 15 (9th Cir. 2000). A certificate of appealability is unwarranted. I deny Duke a certificate of 16 appealability. 17 V. CONCLUSION 18 I THEREFORE ORDER that the Petition for a Writ of Habeas Corpus Pursuant to 28 19 U.S.C. § 2254 by a Person in State Custody (ECF No. 6) is DENIED. 20 I FURTHER ORDER that Duke is denied a certificate of appealability. 21 I FURTHER ORDER the Clerk of Court to substitute Jerry Howell for Dwight Neven as 22 the respondent warden on the docket for this case. 23 / / / / 1 I FURTHER ORDER the Clerk of the Court to enter judgment accordingly. 2 Dated: November 13, 2019. GAT ANDREW P. GORDON 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23