Keck v. State of Nevada

• Court: District Court, D. Nevada
• Decided: December 17, 2020
• Docket: 2:16-cv-02984
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 JAMES WILLIAM KECK, Case No.: 2:16-cv-02984-JAD-BNW 5 Petitioner

6 v. Order Denying Petition for Writ of Habeas Corpus and Denying 7 BRIAN WILLIAMS, et al., Certificate of Appealability 8 Respondent 9 Petitioner James William Keck was sentenced to 22 to 60 years after pleading guilty in 10 Nevada state court to attempted murder with the use of a deadly weapon, battery with the use of 11 a deadly weapon resulting in substantial bodily harm, assault with a deadly weapon, and burglary 12 while in possession of a firearm.1 Keck seeks a writ of habeas corpus under 28 U.S.C. § 2254, 13 arguing that his trial counsel was ineffective and that he was denied an individualized sentencing 14 hearing.2 Having evaluated the merits of those claims, I find that habeas relief is not warranted, 15 so I deny Keck’s petition, deny him a certificate of appealability, and close this case. 16 Background 17 A. The facts underlying Keck’s conviction3 18 On April 12, 2012, Keck entered his workplace, Boma’s Bar located in Las Vegas, 19 Nevada, armed with a shotgun. He confronted a co-worker at the bar, who ran away from him 20 on foot. Keck shot at his co-worker while chasing her into a nearby office building and 21 threatening to kill her. He fired several rounds, injuring three people.

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1 ECF No. 13-32. 25 2 ECF No. 9. 26 3 These facts are taken from the information, second amended criminal complaint, and 27 sentencing hearing. ECF Nos. 13-3, 13-24, 13-31. For simplicity’s sake, I cite to these exhibits generally for this entire background section. 28 1 B. Procedural history 2 Keck was charged with three counts of attempted murder with use of a deadly weapon, 3 one count of battery with use of a deadly weapon, one count of battery with use of a deadly 4 weapon resulting in substantial bodily harm, four counts of assault with a deadly weapon, and 5 two counts of burglary while in possession of a firearm.4 With a September 6, 2012, guilty plea 6 agreement and plea colloquy, Keck pled guilty to one count of attempt murder with use of a 7 deadly weapon, one count of battery with use of a deadly weapon resulting in substantial bodily 8 harm, one count of assault with a deadly weapon, and one count of burglary while in possession 9 of a firearm.5 10 At the sentencing hearing, Keck was present in custody with his counsel.6 The state 11 district court was provided with a pre-sentence investigation report, a pre-sentence psychological 12 evaluation, victim-impact statements, and letters in support of Keck.7 During the sentencing 13 hearing, the State, defense counsel, and two victim speakers addressed the state district court.8 14 The State proffered that Keck was angry with his co-worker because she rejected his romantic 15 advances and that Keck contacted this co-worker prior to going to his workplace to communicate 16 that he was going to kill her.9 The defense proffered that Keck had “serious emotional issues” as 17 documented in the pre-sentence psychological evaluation, that he was prescribed an anti- 18 depressant by a general practitioner, and that he was using substances like alcohol and 19 20 21 22

4 ECF No. 13-16. 23 5 ECF Nos. 13-25, 13-26. 24 6 ECF No. 13-31. 25 7 ECF No. 7 at 35–59; ECF No. 16–15. 26 8 Id. 27 9 ECF No. 13-31 at 5–6. 28 1 marijuana.10 Keck had stopped using such substances “cold turkey” after he did not pass a drug 2 test and his employer suspended him from his job.11 3 The state district court sentenced Keck to 22 to 60 years in prison.12 Keck appealed and 4 the Nevada Supreme Court affirmed Keck’s judgment of conviction.13 Keck then filed a state 5 habeas petition.14 The state district court denied his state habeas petition and found that an 6 evidentiary hearing was not necessary.15 The Nevada Court of Appeals affirmed the denial of 7 the petition.16 Keck filed a counseled federal habeas petition, amended petition, and second 8 amended petition.17 The respondents moved to dismiss ground four of Keck’s petition,18 and I 9 granted the motion in part, finding that ground four was unexhausted.19 I then ordered Keck to 10 decide how to proceed, and he abandoned his unexhausted claim.20 The respondents answered 11 the remaining claims in Keck’s petition.21 Keck filed no reply and the deadline to do so has long 12 passed.

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10 Id. at 9. 17 11 Id. at 10. 18 12 ECF No. 13-32. 19 13 ECF No. 15-3. 20 14 ECF No. 15-5. 21 15 ECF No. 15-26 at 11–12. 22 16 ECF No. 16-13. 23 17 ECF Nos. 1, 6, 9. 24 18 ECF No. 12. 25 19 ECF No. 22. 26 20 ECF No. 24. 27 21 ECF No. 26. 28 1 Discussion 2 A. Legal standards 3 1. Review under the 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.”22 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.23 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.24 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.”25 The “objectively unreasonable” standard is difficult to satisfy;26 “even 16 ‘clear error’ will not suffice.”27 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.”28 19 As “a condition for obtaining habeas relief,” a petitioner must show that the state-court decision

20 22 28 U.S.C. § 2254(d). 21 23 Price v. Vincent, 538 U.S. 634, 640 (2003). 22 24 White v. Woodall, 134 S. Ct. 1697, 1705–07 (2014). 23 25 White, 134 S. Ct. at 1705–06. 24 26 Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013). 25 27 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 28 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.”29 “[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.30 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.’”31 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.32 The petitioner bears the burden of proving 9 by a preponderance of the evidence that he is entitled to habeas relief,33 but state-court factual 10 findings are presumed correct unless rebutted by clear and convincing evidence.34 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.”35 Counsel can “deprive a defendant of the right to effective 14 assistance[] simply by failing to render ‘adequate legal assistance[.]’”36 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) his counsel’s representation fell below an objective 17 standard of reasonableness under prevailing professional norms in light of all of the 18

19 29 Id. at 103. 20 30 Id. at 101. 21 31 Renico v. Lett, 559 U.S. 766, 773 (2010) (citations omitted). 22 32 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 33 Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 25 34 28 U.S.C. § 2254(e)(1). 26 35 Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). 27 36 Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 335–36 (1980)). 28 1 circumstances of the particular case;37 and (2) it is reasonably probable that, but for counsel’s 2 errors, the result of the proceeding would have been different.38 However, the court need not 3 “address both components of the inquiry” if the petitioner “makes an insufficient showing on 4 one.”39 5 A reasonable probability is “probability sufficient to undermine confidence in the 6 outcome.”40 Any review of the attorney’s performance must be “highly deferential” and must 7 adopt counsel’s perspective at the time of the challenged conduct so as to avoid the distorting 8 effects of hindsight.41 “The question is whether an attorney’s representation amounted to 9 incompetence under prevailing professional norms, not whether it deviated from best practice or 10 most common custom.”42 The burden is on the petitioner to overcome the presumption that 11 counsel made sound trial-strategy decisions.43 12 When an ineffective-assistance-of-counsel claim is made in the context of a guilty plea, 13 the Strickland prejudice prong requires a petitioner to demonstrate “there is a reasonable 14 probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and 15 would have insisted on going to trial.”44 As the United States Supreme Court observed: 16 In many guilty plea cases, the “prejudice” inquiry will closely 17 resemble the inquiry engaged in by courts reviewing ineffective- assistance challenge to convictions obtained through a trial. For 18 example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the 19 determination whether the error “prejudiced” the [petitioner] by 20

37 Strickland, 466 U.S. at 690. 21 38 Id. at 694. 22 39 Id. at 697. 23 40 Williams v. Taylor, 529 U.S. 362, 390–91 (2000) 24 41 Strickland, 466 U.S. at 689. 25 42 Harrington, 562 U.S. at 104. 26 43 Id. 27 44 Hill v. Lockhart, 474 U.S. 52, 59 (1985). 28 causing him to plead guilty rather than go to trial will depend on 1 the likelihood that discovery of the evidence would have lead 2 counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction 3 whether the evidence likely would have changed the outcome of a trial.45 4 The United States Supreme Court has described federal review of a state appellate court’s 5 decision on an ineffective-assistance claim as “doubly deferential.”46 So, the court must “take a 6 ‘highly deferential’ look at counsel’s performance . . . through the ‘deferential lens of § 7 2254(d)’”47 and consider only the record that was before the state court that adjudicated the 8 claim on its merits.48 9 B. Evaluating Keck’s remaining claims 10 Keck alleges that he was denied effective-assistance-of-counsel because his counsel did 11 not meet with him to review the plea agreement, because counsel failed to provide Keck a copy 12 of his pre-sentence investigation (“PSI”) report, and because counsel failed to adequately prepare 13 for the sentencing hearing.49 He also claims that he was denied an individualized sentencing 14 hearing in violation of his constitutional rights.50 I now address these four remaining claims. 15 1. Ground 1—ineffective assistance re: plea advice 16 In Ground 1, Keck alleges that he was denied effective-assistance-of-counsel when his 17 counsel did not meet with him regarding the plea agreement in the detention center.51 Keck 18 19 20 21

45 Id. 22 46 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). 23 47 Id. 24 48 Id. at 181–84. 25 49 ECF No. 9 at 4, 6, 7. 26 50 Id. at 11. 27 51 Id. at 4. 28 1 asserts that he was given the plea agreement to sign immediately prior to arraignment.52 In 2 affirming the denial of Keck’s state habeas petition, the Nevada Court of Appeals held: 3 Keck argues his counsel was ineffective for failing to sufficiently review the written plea agreement with Keck prior to entry of his 4 guilty plea. Keck fails to demonstrate his counsel’s performance 5 was deficient or resulting prejudice. In the written plea agreement, Keck acknowledged that he had discussed the charges and possible 6 defenses with counsel, and that counsel had answered all his questions regarding the agreement. At the plea canvass, Keck 7 further asserted that he had read and understood the written plea 8 agreement, and that his attorney had answered all of his questions regarding the agreement. Accordingly, Keck fails to demonstrate 9 his counsel did not sufficiently review the written plea agreement with Keck. Keck fails to demonstrate a reasonable probability he 10 would have refused to plead guilty and would have insisted on 11 going to trial had counsel spent further time discussing the written plea agreement with Keck. Therefore, the district court did not err 12 in denying this claim without conducting an evidentiary hearing.53 13

14 I find that the Nevada Court of Appeals’ rejection of Keck’s claim was neither contrary 15 to nor an unreasonable application of clearly established law as determined by the United States 16 Supreme Court. The Nevada Court of Appeals’ determination that Keck failed to demonstrate 17 that his counsel was deficient was not an unreasonable application of the performance prong of 18 Strickland. At the plea canvass, Keck affirmed that he discussed the case and his rights with his 19 counsel, that he understood the plea agreement, and that his counsel answered any questions that 20 he had regarding the agreement.54 “Solemn declarations in open court carry a strong 21 presumption of verity.”55 In the written plea agreement, Keck again affirmed that he discussed 22 any possible defenses with his attorney and that his attorney answered all of his questions 23 24

52 Id. 25 53 ECF No. 16-13 at 3. 26 54 ECF No. 13-26 at 5–6. 27 55 Blackledge v. Allison, 431 U.S. 63, 73–74 (1977). 28 1 regarding the plea agreement.56 The Court of Appeals reasonably determined that Keck failed to 2 demonstrate that his counsel’s performance fell below an objective standard of reasonableness. 3 Moreover, the Court of Appeals reasonably found Keck would not have pled differently 4 and insisted on going to trial if his counsel had spent more time discussing the plea agreement 5 with him. To succeed on such a theory, the “petitioner must convince the court that a decision to 6 reject the plea bargain would have been rational under the circumstances.”57 The State initially 7 charged Keck with eleven felony counts.58 As a result of plea negotiations, in the information to 8 which Keck entered a guilty plea: (1) the prior three counts of attempt murder with use of a 9 deadly weapon were collapsed into a single count; and (2) the prior four counts of assault with a 10 deadly weapon were collapsed into a single count; and (3) the prior two counts of burglary were 11 collapsed into a single count.59 Had Keck rejected the plea agreement and proceeded to trial, he 12 would have faced seven additional felony charges and would not have gained the benefit of 13 reduced exposure at sentencing. The Court of Appeals reasonably found that Keck failed to 14 demonstrate a reasonable probability that but for counsel’s failure to review the plea agreement 15 with him prior to entry of the plea, a rational defendant in Keck’s situation would have pled not 16 guilty and would have insisted on going to trial. Keck is, therefore, denied federal habeas relief 17 on Ground 1. 18 2. Ground 2—ineffective assistance re: the PSI report 19 In Ground 2, Keck alleges that he was denied effective-assistance-of-counsel because 20 counsel failed to provide him with a copy of the PSI report.60 He asserts that because he was not 21 timely provided a copy of the PSI report, he was unable to correct errors contained in the 22 document, such as statements that he threatened his co-worker prior to the shooting, that he was 23

56 ECF No. 12-25 at 6–7. 24 57 Padilla v. Kentucky, 559 U.S. 356, 372 (2010). 25 58 ECF No. 13-16. 26 59 ECF No. 13-24. 27 60 ECF No. 9 at 6–7. 28 1 “jilted” by his co-worker, and that he was under the influence of drugs and alcohol at the time of 2 the shooting.61 The respondents argue that there were multiple external sources for such 3 information and that Keck failed to demonstrate prejudice.62 The Nevada Court of Appeals held: 4 Keck argues his counsel was ineffective for failing to permit him 5 to review the presentence investigation report (PSI) and advising him to decline to talk with parole and probation during the 6 preparation of the PSI. Keck fails to demonstrate either deficiency or prejudice for this claim. Keck makes only a bare claim for this 7 issue and does not explain how personally reviewing the PSI or 8 talking with the person preparing that report would have altered the outcome in this matter. A bare claim, such as this one, is 9 insufficient to demonstrate a petitioner is entitled to relief. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225. Therefore, the 10 district court did not err in denying this claim without conducting 11 an evidentiary hearing.63 12 13 I find that the Nevada Court of Appeals’ rejection of Keck’s bare claim was neither 14 contrary to nor an unreasonable application of Strickland. Although the Court of Appeals held 15 that Keck failed to demonstrate both deficiency and resulting prejudice, I will address only the 16 prejudice prong. The Court of Appeals reasonably determined that Keck failed to establish that 17 the outcome of sentencing would have been different had counsel presented the PSI report for 18 Keck’s review or advised him to speak with the individuals preparing the PSI report. Keck did 19 not demonstrate how personally reviewing the PSI or speaking with the preparers of the PSI 20 would have altered sentencing.64 He asserts that he was deprived of the opportunity to timely 21 correct certain factual errors contained in the document, which does not establish that the 22 outcome of sentencing would have been different, particularly in light of the nature of the crimes 23 to which Keck pled guilty. Keck’s bare claim did not set forth that there was any indication that 24

61 Id. at 6. 25 62 ECF No. 26 at 11. 26 63 ECF No. 16-13 at 4. 27 64 See Turner v. Calderon, 281 F.3d 851, 855 (9th Cir. 2002) (rejecting “bare assertions”). 28 1 the state district court relied on the allegedly incorrect information contained within the PSI 2 report in sentencing him. 3 Further, Keck was advised in the plea agreement that the PSI report would be prepared 4 before sentencing and that it could contain hearsay information.65 Keck had the opportunity to 5 speak during the sentencing hearing, but he did not claim at that time that he had not been given 6 the chance to review the report or that any of the information discussed by the State was 7 incorrect. The Court of Appeals reasonably determined that Keck failed to demonstrate a 8 reasonable probability that but for counsel’s failure to review the PSI report with Keck, the 9 outcome of sentencing would have been different. So I deny Keck federal habeas relief on 10 Ground 2. 11 3. Ground 3—ineffective assistance re: sentencing-hearing preparation 12 In Ground 3, Keck alleges that he was denied effective assistance of counsel at 13 sentencing because counsel failed to adequately prepare for his sentencing hearing.66 He asserts 14 that counsel failed to review the drug assessment evaluation provided by the defense, failed to 15 prepare Keck for the sentencing hearing, and failed to object to inflammatory remarks made by 16 victims at sentencing and/or in victim-impact statements.67 The respondents argue that the 17 record shows that counsel was well prepared for the sentencing hearing and that Keck failed to 18 demonstrate prejudice.68 19 The Nevada Court of Appeals held: 20 Keck argues his counsel was ineffective for failing to ensure Keck 21 was prepared to give a statement during the sentencing hearing and for failing to ensure Keck had the opportunity to review a 22 competency evaluation which discussed Keck’s issues regarding substance abuse. Keck also argues counsel should have hired 23 additional experts to further explain Keck’s withdrawal from those 24

65 ECF No. 13-25 at 5. 25 66 ECF No. 9 at 7–8. 26 67 Id. at 8. 27 68 ECF No. 26 at 15–16. 28 substances. Keck asserts that these issues prevent him from 1 properly presenting to the sentencing court the withdrawal 2 information in mitigation. 3 Keck fails to demonstrate his counsel’s performance was deficient or resulting prejudice. Keck made a brief statement during the 4 sentencing hearing, a competency evaluation discussing his substance abuse was presented to the sentencing court, and counsel 5 made a lengthy argument in mitigation regarding Keck’s substance 6 abuse and withdrawal from those substances. Keck fails to demonstrate this was the conduct of objectively unreasonable 7 counsel. In addition, Keck makes only a bare claim that counsel should have hired additional experts and he does not demonstrate 8 counsel could have uncovered further favorable expert testimony 9 regarding this issue. See id. In light of the nature of Keck’s crimes, Keck fails to demonstrate a reasonable probability of a 10 different outcome at the sentencing hearing had counsel provided further information regarding Keck’s substance abuse issues or 11 permitted Keck to further review the evidence pertaining to his 12 issues. Therefore, the district court did not err in denying this claim without conducting an evidentiary hearing. 13 Keck argues his counsel was ineffective during the sentencing 14 hearing for failing to object to impermissible victim impact 15 testimony. During the sentencing hearing, one victim stated she was fearful if Keck was released from prison he could find her and 16 harm her or her family. Another victim referred to Keck as the devil and asserted that Keck had “murdered the lives of the 17 victims” because he had forever altered their lives. 18 Keck fails to demonstrate his counsel’s performance was deficient 19 or resulting prejudice. When placed in context, the victims’ statements reveal they were expressing fear of Keck, their desire 20 that he receive a lengthy prison sentence, and the impact Keck had on their lives following the workplace-shooting incident. Given 21 the nature of the victim-impact testimony, Keck fails to 22 demonstrate that objectively reasonable counsel would have objected during the victims’ statements. See NRS 176.0153(3)(3) 23 (victims may “[r]easonably express any views concerning the crime, the person responsible, the impact of the crime on the 24 victim and the need for restitution”; see also Gallego v. State, 117 25 Nev. 348, 370, 23 P.3d 227 242 (2001) (“A victim can express an opinion regarding the defendant’s sentence . . . in non-capital 26 cases.”), overruled on other grounds by Nunnery v. State, 127 Nev. 749, 776 n. 12, 263 P.3d 235, 255 n.12 (2011). Keck fails to 27 demonstrate a reasonable probability of a different outcome had 28 counsel objected during the victim-impact testimony. See Dieudonne v. State, 127 Nev. 1, 9, n.3, 245 P.3d 1202, 1207 n.3 1 (2011) (recognizing that erroneous admission of victim-impact 2 statements is reviewed for harmless error). Therefore, the district court did not err in denying this claim without conducting an 3 evidentiary hearing.69 4 5 I find that the Nevada Court of Appeals’ rejection of Keck’s claim was neither contrary 6 to nor an unreasonable application of the performance prong of Strickland. Counsel’s 7 representation of Keck at sentencing did not amount to “incompetence under prevailing 8 professional norms.”70 Counsel prepared an extensive sentencing memorandum in which he 9 described Keck’s substance abuse and attached a psychological evaluation performed by an 10 expert, Dr. Mortillaro, that further discussed Keck’s substance abuse and withdrawal as well as 11 numerous letters in support of Keck.71 At the sentencing hearing, counsel made a detailed 12 argument and multiple references to Dr. Mortillaro’s findings regarding Keck’s substance abuse 13 and withdrawal from those substances in support of mitigation.72 Further, as the Court of 14 Appeals reasonably concluded, Keck failed to demonstrate that his counsel could have 15 uncovered further favorable expert testimony regarding this issue.73 Despite alleging that he was 16 unprepared, Keck made a brief statement during the sentencing hearing expressing remorse and 17 willingness to accept responsibility for his actions in addition to his counsel’s lengthy 18 argument.74 19 20

21 69 ECF No. 16-13 at 4–6. 22 70 Harrington, 562 U.S. at 104. 23 71 ECF No. 16-15. 24 72 ECF No. 13-31 at 7–12. 25 73 ECF No. 16-13 at 4–5. 26 74 ECF No. 13-31 at 7. See also Strickland, 466 U.S. at 688–89 (“No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced 27 by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”). 28 1 Moreover, Keck did not demonstrate that there was a basis for objectively reasonable 2 counsel to successfully object to the victim-impact testimony. Counsel’s decision not to object 3 to the alleged inflammatory remarks contained within the victim-impact testimony does not fall 4 “outside the wide range of professionally competent assistance.”75 In order to prevail on an 5 ineffective-assistance-of-counsel claim, Keck must show that his counsel acted deficiently and “a 6 reasonable probability that, but for counsel’s [deficiencies], the result of the proceeding would 7 have been different.”76 However, I need not “address both components of the inquiry” if there is 8 “an insufficient showing on one.”77 Keck has not sufficiently demonstrated here his counsel’s 9 “representation fell below an objective standard of reasonableness.”78 Therefore, the Strickland 10 inquiry need not continue, and Keck is denied federal habeas relief on Ground 3. 11 4. Ground 5—due process and an individualized sentencing hearing 12 In Ground 5, Keck alleges that he was denied his right to due process of law and an 13 individualized sentencing hearing in violation of the Eighth and Fourteenth Amendments 14 because the Nevada Supreme Court erred by failing to find that the district court did not consider 15 mitigating factors and issued the maximum possible sentence without explanation. Keck argues 16 that the district court did not consider his individual circumstances such as his mental health and 17 lack of criminal record, and it disregarded the Nevada Division of Parole and Probation’s 18 recommended sentence. The respondents argue that non-capital criminal defendants do not have 19 a constitutional right to an individualized sentencing hearing and that the district court sentenced 20 Keck within the statutory limits on each of his crimes.

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75 Strickland, 466 U.S. at 690. 25 76 Id. at 694. 26 77 Id. at 697. 27 78 Id. 28 1 On direct appeal, the Nevada Supreme Court rejected these arguments: 2 Keck contends that the district court abused its discretion and 3 violated his constitutional rights under the Eighth Amendment and the Due Process Clause by not considering the recommended 4 sentence of the Nevada Division of Parole and Probation, his history of mental health issues and drug abuse, lack of criminal 5 history, or any other mitigating evidence presented at his 6 sentencing hearing before sentencing him to 22 to 66 years in prison. “The Eighth Amendment requires that defendants be 7 sentenced individually, taking into account the individual as well as the charged crime.” Martinez v. State, 114 Nev. 735, 737, 961 8 P.2d 143, 145 (1998). We have consistently afforded the district 9 court wide discretion in its sentencing decision, see, e.g. Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987), and will 10 refrain from interfering with sentence imposed by the district court “[s]o long as the record does not demonstrate prejudice resulting 11 from consideration of information or accusations founded on facts 12 supported only by impalpable or highly suspect evidence,” Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). Keck has not 13 presented any evidence that the district court based its sentencing decision solely on the charged crime and that it did not consider 14 him as an individual. Furthermore, Keck does not allege that the 15 district court considered evidence founded on impalpable or highly suspect evidence. Therefore, we conclude that the district court 16 did not abuse its discretion at sentencing or violate the United States and Nevada constitutional requirement of individualized 17 sentencing. 18 Keck contends that the district court abused its discretion by failing 19 to articulate a reason for its sentencing determination. In support of this contention, Keck cites a number of federal cases and argues 20 that because a presentence investigation report is analogous to the Federal Sentencing Guidelines, the district court should be 21 required to explain its reasons for departing from the 22 recommendation of the Division of the Parole and Probation. The Federal Sentencing Guidelines are not analogous to a Nevada 23 presentence investigation report. Compare NRS 176. 145 with 18 U.S.C. § 3553; U.S. Sentencing Guidelines Manual (2012); see 24 also Fed. R. Crim. P. 32(d). Even assuming that a presentence 25 investigation report is analogous to the Federal Sentencing Guidelines, decisions of the federal district court and panels of the 26 federal circuit court of appeals are not binding on Nevada courts. United State ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 27 (7th Cir. 1970). We are not persuaded that the district court abused 28 its discretion by failing to articulate a reason for its sentencing 1 determination.79 2 3 Sentencing issues regarding rules of sentencing adopted by state courts generally do not 4 raise constitutional issues which may be reached by habeas proceedings.80 The question on 5 federal habeas review is thus not whether the state district court committed state-law error, 6 “rather, a federal habeas petitioner must show that an alleged state sentencing error was ‘so 7 arbitrary or capricious as to constitute an independent due process or Eighth Amendment 8 violation.’”81 And although the Nevada Supreme Court provided that the Eighth Amendment 9 requires that defendants be sentenced individually, criminal defendants in noncapital cases do 10 not have a constitutional right to individualized sentences.82 Nonetheless, the Nevada Supreme 11 Court determined that the district court did not abuse its discretion at sentencing, did not violate 12 constitutional requirements, and did not deny Keck individualized sentencing. That decision is 13 neither contrary to clearly established law as determined by the United States Supreme Court nor 14 an unreasonable application thereof. 15 The state district court’s alleged failure to consider mitigating factors or Keck’s 16 individual circumstances in sentencing and its alleged failure to articulate its reasons for his 17 sentence was neither arbitrary nor capricious and did not result in any fundamental unfairness or 18 any violation of Keck’s due process or Eighth Amendment rights. In addition to his counsel’s 19 lengthy argument in support of mitigation, counsel prepared and presented to the state district 20 court a sentencing memorandum that included a psychological evaluation as well as letters from 21

79 ECF No. 15-3 at 2–3. 22 23 80 Johnson v. State of Ariz., 462 F.2d 1352, 1353 (9th Cir. 1972). See also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (holding that absent a showing of fundamental unfairness, a state 24 court’s misapplication of its own sentencing laws does not justify federal habeas relief).

25 81 Richmond v. Lewis, 506 U.S. 40, 50 (1992). 26 82 Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion) (“[I]n noncapital cases, the 27 established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes.”). 28 1 his family, friends, and previous employers. As the Nevada Supreme Court noted, the state 2 district court is afforded wide discretion in its sentencing decision and Keck did not present any 3 evidence that the district court based its sentencing decision solely on the charged crime or that it 4 considered evidence founded on impalpable or highly suspect evidence. Additionally, the 5 Nevada Supreme Court’s determination that the state district court did not abuse its discretion by 6 failing to articulate a reason for imposing Keck’s sentence was not contrary to clearly established 7 federal law as his sentence was within the statutory limits.83 A sentence imposed in accordance 8 with state law does not violate federal due process simply because the state district court failed to 9 set forth its reasoning for imposing a particular sentence. Accordingly, Ground 5 provides no 10 basis for habeas corpus relief. 11 C. Certificate of Appealability 12 The right to appeal from the district court’s denial of a federal habeas petition requires a 13 certificate of appealability. To obtain that certificate, the petitioner must make a “substantial 14 showing of the denial of a constitutional right.”84 “Where a district court has rejected the 15 constitutional claims on the merits,” that showing “is straightforward: The petitioner must 16 demonstrate that reasonable jurists would find the district court’s assessment of the constitutional 17 claims debatable or wrong.”85 Because I have rejected petitioner’s constitutional claims on their 18 merits, and Keck has not shown that this assessment of his claims is debatable or wrong, I find 19 that a certificate of appealability is unwarranted in this case.

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25 83 Whalen v. United States, 445 U.S. 684, 689–90 n. 4 (1980). See also Branch v. Cupp, 736 F.2d 533, 536 (9th Cir. 1984), cert. denied, 470 U.S. 1056 (1985). 26 84 28 U.S.C. § 2253(c). 27 85 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. 9] is DENIED. 3 And because reasonable jurists would not find my decision to deny this petition to be debatable or wrong, a certificate of appealability is DENIED. 5 The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS 6] CASE. 7 Dated: December 16, 2020 : 9 USS. Distrist Judge Jenifer A. Dorsey 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18