Eric Orduna v. Tim Garrett

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIC ORDUNA, No. 23-15313

Petitioner-Appellant, D.C. No. 3:20-cv-00641-MMD-CLB v.

TIM GARRETT; ATTORNEY GENERAL MEMORANDUM* FOR THE STATE OF NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Submitted August 13, 2024** San Francisco, California

Before: GRABER, CALLAHAN, and KOH, Circuit Judges.

Petitioner Eric Orduna was charged in Nevada with conspiracy to commit

kidnapping, first-degree kidnapping resulting in substantial bodily harm with a

deadly weapon, conspiracy to commit robbery, robbery with the use of a deadly

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). weapon, conspiracy to commit murder, and murder with the use of a deadly

weapon. The state filed a notice of intent to seek the death penalty against Orduna.

Although Orduna pleaded not guilty, his counsel attempted to negotiate a plea deal

prior to trial. These attempts spanned a period of years. On the Friday before trial

was to begin, the state made its first formal plea offer to Orduna, which was a plea

of guilty to all charges in exchange for the state’s agreement to seek a sentence of

life without parole rather than the death penalty. Orduna rejected that offer. On

the first day of trial the state offered a new plea deal, which Petitioner accepted.

He pleaded guilty to one count of murder with a deadly weapon in exchange for

dismissal of all other counts and the state’s agreement not to seek the death penalty

or a sentence of life without parole. Orduna was sentenced to twenty years to life

for first degree murder, with a consecutive sentence of four to ten years for his use

of a deadly weapon.

In this habeas proceeding, 28 U.S.C. § 2254, Petitioner argues that his guilty

plea was not knowing, intelligent, and voluntary. See Brady v. United States, 397

U.S. 742, 748 (1970) (“Waivers of constitutional rights not only must be voluntary

but must be knowing, intelligent acts done with sufficient awareness of the relevant

circumstances and likely consequences.”). The district court denied the petition.

Reviewing de novo, Kipp v. Davis, 971 F.3d 939, 948 (9th Cir. 2020), we affirm.

2 Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a federal habeas petitioner must show that the state court’s

adjudication of the merits of the claim “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or 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)(1), (d)(2). When evaluating a petition under

AEDPA, we look to the “last reasoned [state court] decision.” Barker v. Fleming,

423 F.3d 1085, 1091–92 (9th Cir. 2005) (citation omitted). The Nevada Court of

Appeals issued the last reasoned state court decision in this case.

Petitioner argues that his plea was not knowing, intelligent, and voluntary

because the “stress and strain” of having to make a quick decision caused “a

mental breakdown where he did not fully understand the consequences of the

proceeding” and because the plea resulted from prosecutorial coercion. The

Nevada courts rejected all these arguments.

At the plea colloquy, Petitioner affirmed that his plea was “freely and

voluntary given.” In particular, Petitioner affirmed that: (1) he was not threatened

or forced to plead guilty; (2) he understood his sentencing range for the murder

with the use of a deadly weapon charge included life without the possibility of

parole, but that he would be able to withdraw his plea and go to trial if the court

3 imposed that sentence; (3) he understood that “the other possible sentences

[included] life with the possibility of parole beginning at 20 years” and that the

deadly-weapon enhancement would result in “a consecutive term of -- maximum

term of 20 years, minimum term of one year”; (4) he signed the plea agreement on

page 5 of the agreement; (5) he “read and underst[oo]d everything contained

within the agreement”; (6) any questions he had about the agreement were

answered by his legal counsel at the time; (7) he was “very satisfied” with the

services provided by his legal counsel; (8) no promises were made to him by his

legal counsel, other than those stated in court regarding the plea agreement

negotiations and those written in the agreement; and (9) he committed the acts

indicated in the amended indictment. Petitioner also “understood his legal liability

even if he did not administer the fatal blow to the victim and entered a guilty plea

that conformed to [his] assertions regarding the facts of the case.” (Emphasis

added). For good measure, Petitioner was asked whether he had questions for the

trial court or for his legal counsel, to which he responded “[n]o.” The court then

asked, again, whether Petitioner was entering his plea “freely and voluntarily,” to

which he responded “[y]es, Your Honor.”

Even though Petitioner had only a short time to consider the plea agreement

and he experienced stress when he entered the plea, the Nevada Court of Appeals’

conclusion that the plea was knowing, intelligent, and voluntary is not an

4 “unreasonable determination of the facts,” nor is it “contrary to,” or “an

unreasonable application of, clearly established Federal law” as announced by the

Supreme Court. 28 U.S.C. § 2254(d)(1), (d)(2); see also Doe v. Woodford, 508

F.3d 563, 571 (9th Cir. 2007) (holding that “[a]ny evidence of mental deficiencies

did not undermine the voluntariness of [the defendant’s] plea even in light of the

alleged limitation to two hours he claims he had to consider the proposed plea

agreement”). In addition, the court’s finding that Petitioner was not coerced by the

prosecution is not an unreasonable determination of the facts or an unreasonable

application of Supreme Court law. 28 U.S.C. § 2254(d)(1), (d)(2).

AFFIRMED.