3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 MICHAEL RAY MAXWELL, Case No. 3:19-cv-00201-MMD-CLB
7 Petitioner, ORDER v. 8
9 WARDEN RENEE BAKER, et al.,
10 Respondents.
11 12 I. SUMMARY 13 Petitioner Michael Maxwell filed a petition for writ of habeas corpus under 28 14 U.S.C. § 2254. This matter is before this Court for adjudication of the merits of Maxwell’s 15 petition. (ECF No. 4 (“Petition”).) For the reasons discussed below, this Court denies both 16 the Petition and a certificate of appealability. 17 II. BACKGROUND 18 Maxwell’s convictions are the result of events that occurred in Nye County, 19 Nevada on, about, or between May 1, 2011, and May 2, 2011. (ECF No. 13-39.) In an 20 information filed in state district court, the State alleged that Maxwell and four co- 21 defendants murdered Michael Frasher and attempted to murder Antionette Belle. (Id.) 22 Following a guilty plea, Maxwell was adjudged guilty of solicitation to commit murder 23 with the use of a deadly weapon, attempted theft, unlawful use of a controlled substance, 24 and theft of services. (ECF Nos. 13-40, 13-54.) Maxwell was sentenced to 72 to 180 25 months for the solicitation to commit murder conviction plus a consecutive term of 40 to 26 180 months for the deadly weapon enhancement; 24 to 60 months for the attempted 27 theft conviction; 19 to 48 months for the use of a controlled substance conviction; and 1 and the Nevada Supreme Court affirmed on March 14, 2013. (ECF No. 14-10.) 2 Remittitur issued on April 9, 2013. (ECF No. 14-12.) 3 Maxwell filed his pro se state habeas petition on December 31, 2013, and his 4 counseled supplemental petition on January 10, 2018. (ECF Nos. 14-17, 14-30.) The 5 state district court denied the petition on April 3, 2018. (ECF No. 14-34.) Maxwell 6 appealed, and the Nevada Supreme Court affirmed on March 14, 2019. (ECF No. 14- 7 48.) Remittitur issued on April 10, 2019. (ECF No. 14-51.) 8 Maxwell filed his pro se Petition on April 23, 2019, alleging the following violations 9 of his federal constitutional rights:
10 1. His trial counsel induced him to plead guilty to a charge that included 11 an illegal sentencing enhancement. 2a. His trial counsel failed to object to the deadly weapon enhancement 12 at sentencing, and his appellate counsel failed to raise the same in his direct appeal. 13 2b. His trial counsel failed to assert that the State’s comments at his sentencing breached the plea agreement, and his appellate counsel 14 failed to raise the same in his direct appeal. 15 2c. His trial counsel failed to object to the state district court’s lack of findings regarding his sentence, and his appellate counsel failed to 16 raise the same in his direct appeal. 2d. His trial counsel failed to object to the State requesting that the state 17 district court take notice of evidence from other proceedings during his sentencing, and his appellate counsel failed to raise the same in 18 his direct appeal. 19 3. There was cumulative error regarding the ineffectiveness of his trial counsel and his appellate counsel. 20 21 (ECF No. 4.) Respondents answered the Petition on August 21, 2019, and Maxwell 22 replied on September 19, 2019. (ECF Nos. 12, 15.) 23 III. LEGAL STANDARD 24 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 25 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 26 (“AEDPA”):
27 An application for a writ of habeas corpus on behalf of a person in custody to any claim that was adjudicated on the merits in State court proceedings 1 unless the adjudication of the claim -- 2 (1) resulted in a decision that was contrary to, or involved an 3 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 4 (2) resulted in a decision that was based on an unreasonable 5 determination of the facts in light of the evidence presented in the 6 State court proceeding. 7 A state court decision is contrary to clearly established Supreme Court precedent, within 8 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the 9 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 10 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 11 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (first quoting Williams v. Taylor, 529 U.S. 12 362, 405-06 (2000), and then citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state 13 court decision is an unreasonable application of clearly established Supreme Court 14 precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the 15 correct governing legal principle from [the Supreme] Court’s decisions but unreasonably 16 applies that principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 17 U.S. at 413). “The ‘unreasonable application’ clause requires the state court decision to 18 be more than incorrect or erroneous. The state court’s application of clearly established 19 law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) 20 (internal citation omitted). 21 The Supreme Court has instructed that “[a] state court’s determination that a 22 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 23 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 24 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The 25 Supreme Court has stated “that even a strong case for relief does not mean the state 26 court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 27 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as 1 which demands that state-court decisions be given the benefit of the doubt”) (internal 2 quotation marks and citations omitted). 3 IV. DISCUSSION 4 Maxwell’s Petition alleges that his trial and appellate counsel were ineffective. 5 (See ECF No. 4 at 3-16.) In Strickland, the Supreme Court propounded a two-prong test 6 for analysis of claims of ineffective assistance of counsel requiring the petitioner to 7 demonstrate (1) that the attorney’s “representation fell below an objective standard of 8 reasonableness,” and (2) that the attorney’s deficient performance prejudiced the 9 defendant such that “there is a reasonable probability that, but for counsel’s 10 unprofessional errors, the result of the proceeding would have been different.” Strickland 11 v. Washington, 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective 12 assistance of counsel must apply a “strong presumption that counsel’s conduct falls 13 within the wide range of reasonable professional assistance.” Id. at 689. The petitioner’s 14 burden is to show “that counsel made errors so serious that counsel was not functioning 15 as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. 16 Additionally, to establish prejudice under Strickland, it is not enough for the habeas 17 petitioner “to show that the errors had some conceivable effect on the outcome of the 18 proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the 19 defendant of a fair trial, a trial whose result is reliable.” Id. at 687. 20 When the ineffective assistance of counsel claim is based on a challenge to a 21 guilty plea, the Strickland prejudice prong requires the petitioner to demonstrate “that 22 there is a reasonable probability that, but for counsel’s errors, he would not have 23 pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 24 59 (1985); see also Lafler v. Cooper, 566 U.S. 156, 163 (2012) (“In the context of pleas 25 a defendant must show the outcome of the plea process would have been different with 26 competent advice.”). And when the ineffective assistance of counsel claim is based on 27 an appellate counsel’s actions, a petitioner must show “that [appellate] counsel 1 them” and then “that, but for his [appellate] counsel’s unreasonable failure to file a 2 merits brief, [petitioner] would have prevailed on his appeal.” Smith v. Robbins, 528 3 U.S. 259, 285 (2000). 4 Where a state district court previously adjudicated the claim of ineffective 5 assistance of counsel under Strickland, establishing that the decision was unreasonable 6 is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the United 7 States Supreme Court clarified that Strickland and § 2254(d) are each highly deferential, 8 and when the two apply in tandem, review is doubly so. See id. at 105; see also Cheney 9 v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks omitted) 10 (“When a federal court reviews a state court’s Strickland determination under AEDPA, 11 both AEDPA and Strickland’s deferential standards apply; hence, the Supreme Court’s 12 description of the standard as doubly deferential.”). The Supreme Court further clarified 13 that, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were 14 reasonable. The question is whether there is any reasonable argument that counsel 15 satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. 16 A. Ground 1 17 In Ground 1, Maxwell alleges that his federal constitutional rights were violated 18 because his trial counsel induced him to plead guilty to solicitation to commit murder 19 with the use of a deadly weapon even though the deadly weapon enhancement is 20 prohibited by Nevada law from being applied to the crime of solicitation. (ECF No. 4 at 21 3.) Respondents contend that Maxwell’s trial counsel acted reasonably because Nevada 22 law does allow the deadly weapon enhancement to be applied to the crime of solicitation, 23 or, alternatively, the deadly weapon enhancement was at least presumptively allowed 24 to be applied to the crime of solicitation at the time of the guilty plea agreement 25 negotiations. (ECF No. 12 at 13.) In affirming the denial of his state habeas petition, the 26 Nevada Supreme Court held:
27 Maxwell argues that the district court erred in denying his claim that counsel on Moore v. State, 117 Nev. 659, 660-63, 27 P.3d 447, 449-50 (2001), he 1 asserts that solicitation, like conspiracy, cannot be enhanced with a deadly 2 weapon enhancement. [Footnote 1: Maxwell asserts that Hidalgo v. Eighth Judicial Dist. Court, 124 Nev. 330, 184 P.3d 369 (2008), also supports his 3 argument. We disagree. In Hidalgo, this court concluded that solicitation of a violent crime is not “[a] felony involving the use or threat of violence to the 4 person of another” as described in NRS 200.033(2)(b). The decision did not address whether a deadly weapon can be used during solicitation.] We 5 conclude that Maxwell failed to demonstrate that counsel’s performance fell 6 below an objective standard of reasonableness, and but for counsel’s errors, he would not have pleaded guilty and would have insisted on going 7 to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996); see Strickland v. Washington, 8 466 U.S. 668, 687-88 (1984). Maxwell has not cited any binding authority upon which trial counsel could have relied to advise him that solicitation to 9 commit murder could not be enhanced under NRS 193.165. He suggests 10 that counsel should have advised him that solicitation to commit murder could not be enhanced under NRS 193.165 based on an extension of the 11 reasoning in Moore. As the district court explained, there are sound arguments against extending Moore to solicitation. Notably, the solicitation 12 statute prohibits the commanding of someone to commit an unlawful act, which could feasibly be achieved with the use of a deadly weapon. NRS 13 199.500(1), (2). Given the state of the law at the time and tenuous nature 14 of an argument based on Moore, it would not have been objectively unreasonable for counsel not to advise Maxwell that an enhancement of the 15 solicitation conviction under NRS 193.165 would be infirm or illegal. See Allen v. United States, 829 F.3d 965, 968 (8th Cir. 2016) (“[T]he failure of 16 counsel to argue for an extension of the law or a novel interpretation of circuit precedent is not constitutionally deficient performance.”). Therefore, 17 the district court did not err in concluding that counsel did not perform 18 deficiently.
19 We further conclude that Maxwell failed to demonstrate prejudice—a reasonable probability that he would have rejected the plea agreement and 20 instead gone to trial. Even assuming the legal premise of Maxwell’s ineffective-assistance claim is correct, that solicitation to commit murder 21 cannot be enhanced under NRS 193.165, Maxwell could still agree to the 22 enhancement as part of the plea agreement. See Breault v. State, 116 Nev. 311, 314, 996 P.2d 888, 889 (2000) (holding that a defendant who 23 knowingly and voluntarily agrees to an infirm sentence pursuant to plea negotiations, waives such infirmity pursuant to the negotiations and may not 24 later claim the sentence was infirm). And he has not demonstrated 25 reasonable probability that he would not have done so. First, he has asked to be resentenced on the solicitation offense, not to be allowed to withdraw 26 his guilty plea and go to trial on the original charges. Second, he received a significant benefit from the negotiated plea agreement in comparison to 27 the risk of going to trial. In particular, as part of the plea agreement, the of a deadly weapon, attempted murder with the use of a deadly weapon, 1 accessory to murder with the use of a deadly weapon, and accessory to 2 attempted murder with the use of a deadly weapon. Maxwell did not demonstrate that he would have forgone the benefits of the plea agreement 3 and risked going to trial on the original, more serious charges just to avoid a single enhancement sentence included in the plea agreement. Therefore, 4 the district court did not err in denying this claim. 5 6 (ECF No. 14-48 at 2-4.) The Nevada Supreme Court’s rejection of Maxwell’s Strickland 7 claim was neither contrary to nor an unreasonable application of clearly established law 8 as determined by the United States Supreme Court. 9 Although not included in the original information, the amended information filed 10 before the entry of Maxwell’s guilty plea charged him with solicitation to commit murder 11 with the use of a deadly weapon. (See ECF Nos. 13-19, 13-29, 13-38 at 2.) And 12 Maxwell’s guilty plea agreement provided, in part, that he agreed to plead guilty to 13 solicitation to commit murder with the use of a deadly weapon. (ECF No. 13-40 at 2.) 14 This agreement was made in exchange for the State “forego[ing] the prosecution of any 15 and all charges against [Maxwell] that included murder and attempted murder for 16 directing the attack upon Michael Frasher and the resultant attack on Antionette Belle.” 17 (Id. at 3.) Thereafter, at his change of plea hearing, Maxwell pleaded guilty to solicitation 18 to commit murder with the use of a deadly weapon. (ECF No. 13-41 at 14.) 19 Nevada’s deadly weapon enhancement statute provides that “any person who 20 uses a . . . deadly weapon . . . in the commission of a crime shall . . . be punished by 21 imprisonment” for 1 to 20 years. NRS § 193.165(1). Maxwell contends that NRS § 22 193.165(1) cannot be applied to solicitation generally or in this case because (1) 23 solicitation cannot be committed with the use of a deadly weapon because that would 24 amount to extortion or coercion, (2) solicitation does not involve violence or fear even if 25 the crime solicited is itself violent, and (3) there was no allegation in this case that the 26 solicitation occurred with the use of a deadly weapon. (ECF No. 4 at 6.) 27 /// 1 It is true that at the time of Maxwell’s plea bargaining, the Nevada Supreme Court 2 had “conclude[d] that it is improper to enhance a sentence for conspiracy using the 3 deadly weapon enhancement.” Moore v. State, 117 Nev. 659, 663, 27 P.3d 447, 450 4 (2001). And the Nevada Supreme Court had also concluded that “solicitation to commit 5 murder, although it solicits a violent act, is not itself a felony involving the use or threat 6 of violence.” Hidalgo v. Eighth Judicial Dist. Court, 124 Nev. 330, 337, 184 P.3d 369, 7 374 (2008); see also Nunnery v. Eighth Judicial Dist. Court, 124 Nev. 477, 482, 186 8 P.3d 886, 889 (2008) (“[A]lthough conspiracy to commit robbery involves conspiring to 9 commit a violent act, it is not itself a felony involving the use or threat of violence.”). Even 10 though these cases could have been used to make the argument that solicitation—a 11 nonviolent felony—cannot be enhanced by Nev. Rev. Stat. § 193.165(1), that argument 12 has not been contemplated or ruled on by the Nevada Supreme Court, as the Nevada 13 Supreme Court reasonably noted in its affirmation of the denial of Maxwell’s state 14 habeas petition. As such, and given the uncertain nature of this legal argument, the 15 Nevada Supreme Court reasonably determined that Maxwell failed to demonstrate that 16 his trial counsel was deficient for not properly advising him of the charges to which he 17 pleaded guilty. See Strickland, 466 U.S. at 688; cf. Iaea v. Sunn, 800 F.2d 861, 865 (9th 18 Cir. 1986) (“[C]ounsel have a duty to supply criminal defendants with necessary and 19 accurate information.”).1 20 Further, even if Maxwell’s trial counsel was deficient, the Nevada Supreme Court 21 also reasonably concluded that Maxwell failed to demonstrate prejudice. See Strickland, 22
23 1To the extent that Maxwell asserts that Nevada law cannot not or should not allow the deadly weapon enhancement to be applied to solicitation to commit murder, this Court 24 notes that that issue is a question for the Nevada Supreme Court, the final arbiter of Nevada state law, and is not the subject of federal habeas review. See Bradshaw v. 25 Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation of state law . . . binds a 26 federal court sitting in habeas corpus.”); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations 27 on state-law questions.”); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas 1 466 U.S. at 694. Importantly, Maxwell requests that this Court “strike the illegal deadly 2 weapon enhancement portion of his sentence.” (ECF No. 4 at 7.) This request, along 3 with the fact that Maxwell received a substantial benefit from the plea-bargaining 4 process,2 which were both reasonably noted by the Nevada Supreme Court, negates a 5 determination that Maxwell would have insisted on going to trial absent his trial counsel’s 6 alleged error. See Hill, 474 U.S. at 59. Thus, because the Nevada Supreme Court 7 reasonably denied Maxwell’s ineffective-assistance-of-trial-counsel claim, Maxwell is 8 denied federal habeas relief for Ground 1. 9 B. Ground 2a 10 In Ground 2a, Maxwell alleges that his federal constitutional rights were violated 11 because his trial counsel failed to object to the deadly weapon enhancement at his 12 sentencing, and his appellate counsel failed to raise the same in his direct appeal. (ECF 13 No. 4 at 10.) In affirming the denial of his state habeas petition, the Nevada Supreme 14 Court held:
15 Maxwell argues that counsel should have objected to the deadly weapon 16 enhancement at sentencing and challenged it on appeal. As Maxwell agreed to the enhancement when he pleaded guilty, Maxwell failed to 17 demonstrate that counsel performed deficiently at sentencing or on appeal or that either challenge would have had a reasonable likelihood of success 18 at the sentencing hearing or on appeal. [Footnote 2: Maxwell also argues that the enhancement was not included in the plea agreement, however, 19 the record demonstrates that the State filed an errata to the plea agreement 20 discussing the enhancement and it was addressed during the plea canvass.] 21 22 (ECF No. 14-48 at 5.) The Nevada Supreme Court’s rejection of Maxwell’s Strickland 23 claim was neither contrary to nor an unreasonable application of clearly established law 24 as determined by the United States Supreme Court. 25 /// 26 2Maxwell was originally charged with murder with the use of a deadly weapon, 27 attempted murder with the use of a deadly weapon, accessory to murder with the use of 1 As was explained in Ground 1, Maxwell pleaded guilty to the charge of solicitation 2 to commit murder with the use of a deadly weapon. (ECF No. 13-41 at 14.) And the state 3 district court thereafter sentenced Maxwell on that charge. (See ECF No. 13-53 at 18.) 4 Maxwell fails to articulate why—in the face of his plea agreement—his trial counsel was 5 deficient for not objecting to the deadly weapon enhancement at his sentencing or his 6 appellate counsel was deficient for failing to raise the same on direct appeal. See Jones 7 v Gomez, 66 F.3d 199, 205 (9th Cir. 1995). To the extent that Maxwell reasserts the 8 arguments posited in Ground 1, this Court has already rejected those arguments. 9 Therefore, because the Nevada Supreme Court reasonably denied Maxwell’s 10 ineffective-assistance-of-trial-counsel and ineffective-assistance-of-appellate-counsel 11 claims, Maxwell is denied federal habeas relief for Ground 2a. 12 C. Ground 2b 13 In Ground 2b, Maxwell alleges that his federal constitutional rights were violated 14 because his trial counsel failed to assert that the State’s comments at his sentencing 15 hearing breached the plea agreement, and his appellate counsel failed to raise the same 16 in his direct appeal. (ECF No. 4 at 10.) Specifically, Maxwell takes issue with the State’s 17 comment that the state district court impose “nothing less” than the maximum sentence, 18 which, according to Maxwell, implies that the state district court should exceed the 19 State’s recommendation. (Id.) In affirming the denial of his state habeas petition, the 20 Nevada Supreme Court held:
21 Maxwell argues that counsel should have asserted that the State violated 22 the plea agreement. We disagree. The State’s arguments during sentencing did not violate its obligations under the plea agreement. Therefore, counsel 23 were not deficient for declining to assert that the State breached the agreement and Maxwell failed to demonstrate any objection or argument on 24 appeal would have been successful. 25 (ECF No. 14-48 at 5.) The Nevada Supreme Court’s rejection of Maxwell’s Strickland 26 claim was neither contrary to nor an unreasonable application of clearly established law 27 as determined by the United States Supreme Court. 1 At Maxwell’s change of plea hearing, the State explained that it would 2 “recommend that the [a]ttempt [t]heft, [u]nlawful [u]se of a [c]ontrolled [s]ubstance, and 3 the [t]heft of [e]lectricity . . . run concurrent on anything that he gets on the [s]olicitation 4 to [c]ommit [m]urder with [u]se of a [d]eadly [w]eapon.” (ECF No. 13-41 at 6.) Further, 5 the State explained that it was “free to argue the [s]olicitation to [c]ommit [m]urder [w]ith 6 [u]se of a [d]eadly [w]eapon.” (Id.) These explanations were also reflected in the guilty 7 plea agreement. (See ECF No. 13-40 at 3.) Sixth months later, at Maxwell’s sentencing 8 hearing, the State reiterated the facts of the case and then commented that Maxwell 9 “should get nothing less than what we are recommending,” which the State detailed was 10 15 years for the solicitation, 15 years for the enhancement, and the maximum sentences 11 for Maxwell’s three other charges. (ECF No. 13-53 at 15-16.) The State also clarified 12 that the sentences on Maxwell’s three other charges should “run concurrent to the 13 [s]olicitation [w]ith [u]se counts consistent with the agreement as detailed during the plea 14 canvass and as written before this Court.” (Id. at 16.) 15 It is true that, pursuant to Nevada law, “[w]hen the State enters into a plea 16 agreement, it is held to the most meticulous standards of both promise and performance 17 with respect to both the terms and the spirit of the plea bargain.” Sparks v. State, 121 18 Nev. 107, 110, 110 P.3d 486, 487 (2005) (internal quotation marks omitted). However, 19 as the Nevada Supreme Court reasonably determined, Maxwell fails to demonstrate that 20 the State’s arguments during his sentencing hearing violated the terms of the plea 21 agreement. The State’s comment that Maxwell should be sentenced to “nothing less 22 than what we are recommending” (ECF No. 13-53 at 16) was within the bounds of the 23 plea agreement. Contrary to Maxwell’s assertions, this comment does not request that 24 Maxwell’s sentence exceed the recommendation; rather, it simply requests that 25 Maxwell’s sentence not fall below the recommendation. And the fact that the state district 26 court “ordered that all counts run consecutive to each other” (see ECF No. 13-54 at 3) 27 reflects the state district court’s sentencing power, not an indication of an improper 1 that Maxwell’s trial counsel was not deficient for not objecting to the State’s 2 unobjectionable comment and his appellate counsel was not deficient for not raising the 3 same in his direct appeal. See Strickland, 466 U.S. at 688; Smith, 528 U.S. at 285. 4 Maxwell is denied federal habeas relief for Ground 2b. 5 D. Ground 2c 6 In Ground 2c, Maxwell alleges that his federal constitutional rights were violated 7 because his trial counsel failed to object to the state district court’s lack of findings 8 regarding his sentence, and his appellate counsel failed to raise the same in his direct 9 appeal. (ECF No. 4 at 10-11.) Maxwell contends that had his trial counsel objected, 10 “there is a reasonable probability of a more favorable sentencing.” (Id. at 11.) In affirming 11 the denial of his state habeas petition, the Nevada Supreme Court held:
12 Maxwell argues that trial and appellate counsel should have challenged the 13 district court’s failure to justify the enhancement sentence based on the factors set forth in NRS 193.165. Before imposing a sentence for a deadly 14 weapon enhancement, the sentencing court must consider the factors enumerated in NRS 193.165. Mendoza-Lobos v. State, 125 Nev. 634, 644, 15 218 P.3d 501, 507 (2009). The district court did address the circumstances of the crime and Maxwell’s motivation to commit it. See NRS 193.165(1)(a), 16 (e). While the court did not address the other enumerated factors, the record 17 indicates that it exercised its discretion in accordance with the statute. See Hughes v. State, 116 Nev. 327, 333, 996 P.2d 890, 893 (2000) (noting that 18 “this court has never required the district courts to utter ‘talismanic’ phrases” and instead “looks to the record as a whole to determine whether the 19 sentencing court actually exercised its discretion”). The failure to explain the ruling more completely does not render it constitutionally defective. See, 20 e.g., Arizona v. Washington, 434 U.S. 497, 516-17 (1978). Therefore, 21 Maxwell failed to demonstrate that counsel were deficient for failing to challenge his sentence on this basis or that the challenge would have been 22 successful. 23 (ECF No. 14-48 at 5-6.) The Nevada Supreme Court’s rejection of Maxwell’s Strickland 24 claim was neither contrary to nor an unreasonable application of clearly established law 25 as determined by the United States Supreme Court. 26 Before handing down Maxwell’s sentence, the state district court explained the 27 basis for its decision: I don’t quite comprehend the reasons for the crimes that occurred, but I 1 don’t comprehend when somebody goes into Wal-Mart to steal a $40 2 stereo, why they would do such a thing.
3 And of course I can’t comprehend why you would do such a thing in this case. Very extreme for the goal, which my understanding from the testimony 4 of the witnesses, the goal was so that you could take over the Pahrump drug market and be the top man in charge of Pahrump and who gets to deal 5 and so forth. 6 And I can understand desperate people or unintelligent people or people 7 that lack morals and ethics or whatever. I can understand people wanting to control the Pahrump drug market. I understand that. The lucrative big, 8 huge, Pahrump drug market where all that money is to be made. But I don’t understand achieving it in the way that you achieved it. And I’ll never be 9 able to understand that. 10 Even in the next life when the Lord is explaining it to everybody, I won’t be 11 able to comprehend and understand why something like this would be done. For a man who supposedly is intelligent to lead such a conspiracy and 12 solicitation, you would think you could have come up with better ways to become the ruler of the Pahrump drug market. I think I could have, and I’m 13 not even into the criminal stuff. 14 But maybe from your perspective, you need to take a couple of people down 15 to let everybody else know you’re in charge. I don’t know, I’m just speculating right now. Maybe someday I will get to find out what the thought 16 process was, the reason. But to me it’s extreme. And therefore, it requires an extreme sentence. 17 18 (ECF No. 13-53 at 17-18.) 19 Nevada law provides that a state district court “shall consider the following” 20 factors “[i]n determining the length of the additional penalty imposed” for the deadly 21 weapon enhancement: “(a) [t]he facts and circumstances of the crime; (b) [t]he criminal 22 history of the person; (c) [t]he impact of the crime on any victim; (d) [a]ny mitigating 23 factors presented by the person; and (e) [a]ny other relevant information.” NRS § 24 193.165(1). The statute also provides that “[t]he court shall state on the record that it 25 has considered the information described in paragraphs (a) to (e), inclusive, in 26 determining the length of the additional penalty imposed.” Id. And the Nevada Supreme 27 Court has “direct[ed] the district courts to make findings regarding each factor 1 enumerated in NRS 193.165(1) . . . when imposing a sentence for a deadly weapon 2 enhancement.” Mendoza-Lobos v. State, 125 Nev. 634, 642, 218 P.3d 501, 506 (2009). 3 Maxwell is correct that the state district court did not strictly abide by the 4 requirements of NRS § 193.165(1). However, the Nevada Supreme Court reasonably 5 noted that, pursuant to Nevada law, this failure does not amount to an automatic granting 6 of relief. In fact, in Mendoza-Lobos, the Nevada Supreme Court concluded that a state 7 district court’s failure to comply with the directives of NRS § 193.165(1) did not warrant 8 the granting of relief if the “omission did not cause any prejudice or a miscarriage of 9 justice.” 218 P.3d at 508; see also Hughes v. State, 996 P.2d 890, 893 (2000) 10 (explaining that “this court has never required the district courts to utter ‘talismanic’ 11 phrases” when sentencing a defendant). The Nevada Supreme Court also reasonably 12 noted that the failure to fully comply with NRS § 193.165(1) does not render a 13 defendant’s sentence constitutionally invalid. See Arizona v. Washington, 434 U.S. 497, 14 516-17 (1978) (“Since the record provides sufficient justification for the state-court ruling, 15 the failure to explain that ruling more completely does not render it constitutionally 16 defective.”). 17 Thus, although it may have been prudent for his trial counsel to have objected to 18 the state district court’s failure to abide by the requirements of NRS § 193.165(1), the 19 Nevada Supreme Court reasonably determined that Maxwell fails to demonstrate 20 prejudice. See Strickland, 466 U.S. at 694. Maxwell’s contention that the state district 21 court would have changed his sentence based on a procedural objection made by his 22 trial counsel is mere speculation, especially since the state district court explained that 23 it was sentencing Maxwell harshly due to his crimes being unexplainable and extreme. 24 See Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“Strickland prejudice is not 25 established by mere speculation.”). And due to the Nevada Supreme Court’s holdings 26 in Mendoza-Lobos, in Hughes, and in Maxwell’s state habeas appeal, Maxwell fails to 27 demonstrate that the Nevada Supreme Court would have granted his direct appeal had 1 his appellate counsel included this issue. See Smith, 528 U.S. at 285. Maxwell is denied 2 federal habeas relief for Ground 2c. 3 E. Ground 2d 4 In Ground 2d, Maxwell alleges that his federal constitutional rights were violated 5 because his trial counsel failed to object to the State requesting that the state district 6 court take notice of victim impact evidence from other proceedings during his 7 sentencing, and his appellate counsel failed to raise the same in his direct appeal. (ECF 8 No. 4 at 12.) Maxwell contends that he was prejudiced by this error because “he received 9 a substantially longer sentence than [that] recommended by the State.” (Id.) In affirming 10 the denial of his state habeas petition, the Nevada Supreme Court held:
11 Maxwell asserts that counsel should have objected to the district court’s 12 decision to consider victim impact evidence introduced in a prior proceeding. We conclude that Maxwell failed to demonstrate deficient 13 performance or prejudice. The district court stated that its familiarity with the facts stemmed from the hearings conducted in this case. Moreover, the 14 district court based its sentencing decision on the circumstances of the crime and Maxwell’s motives, not the victim impact evidence. 15 16 (ECF No. 14-48 at 6.) The Nevada Supreme Court’s rejection of Maxwell’s Strickland 17 claim was neither contrary to nor an unreasonable application of clearly established law 18 as determined by the United States Supreme Court. 19 At Maxwell’s sentencing hearing, the State indicated that it “ha[d] two victims that 20 . . . stepped out.” (ECF No. 13-53 at 13.) The State then explained that the victim’s sister 21 and father were present in the courtroom but that an ambulance had to be called for the 22 father because he was experiencing “stress and strain.” (Id. at 14.) Because these two 23 individuals would not be testifying, the State “ask[ed] th[e] Court to recall the[ir] 24 testimony” from Maxwell’s codefendants’ sentencing hearings. (Id.) Maxwell’s trial 25 counsel did not object. (See id. at 15.) Later, in explaining the basis for its sentence, the 26 state district court commented: “I’m familiar with the facts because of all the times the 27 witnesses have testified at different hearings that we’ve had.” (Id. at 17.) 1 “Victim impact evidence is simply [a] form or method of informing the sentencing 2 authority about the specific harm caused by the crime in question, evidence of a general 3 type long considered by sentencing authorities.” Payne v. Tennessee, 501 U.S. 808, 4 825 (1991). And in Nevada, a victim is allowed “an opportunity to . . . [r]easonably 5 express any views concerning the crime, the person responsible, the impact of the crime 6 on the victim and the need for restitution.” NRS § 176.015(3)(b). A victim is permitted to 7 “[a]ppear personally, by counsel or by personal representative.” Nev. Rev. Stat. § 8 176.015(3)(a). 9 While the victim’s sister and father did not present standard victim impact 10 evidence at Maxwell’s sentencing hearing pursuant to NRS § 176.015, the Nevada 11 Supreme Court reasonably concluded that Maxwell’s trial counsel was not deficient for 12 not objecting to the state district court considering their statements from a different 13 proceeding. See Strickland, 466 U.S. at 688. Indeed, Maxwell fails to cite any authority 14 disallowing such consideration under Nevada law. Rather, the Nevada Supreme Court 15 has explained that “[t]he sentencing proceeding is not a second trial and the court is 16 privileged to consider facts and circumstances which clearly would not be admissible at 17 trial.” Silks v. State, 92 Nev. 91, 93-94, 545 P.2d 1159, 1161 (1976) (concluding that 18 “[s]o long as the record does not demonstrate prejudice resulting from consideration of 19 information or accusations founded on facts supported only by impalpable or highly 20 suspect evidence, this court will refrain from interfering with the sentence imposed.”); 21 see also Williams v. Oklahoma, 358 U.S. 576, 584 (1959) (“[O]nce the guilt of the 22 accused has been properly established, the sentencing judge, in determining the kind 23 and extent of punishment to be imposed, is not restricted to evidence derived from the 24 examination and cross-examination of witnesses in open court but may, consistently 25 with the Due Process Clause of the Fourteenth Amendment, consider responsible 26 unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to 27 the convicted person’s life and characteristics.”). Accordingly, the Nevada Supreme 1 objecting to aptly presented victim impact evidence and his appellate counsel was not 2 deficient for not raising the same in his direct appeal. See Strickland, 466 U.S. at 688; 3 Smith, 528 U.S. at 285. Maxwell is denied federal habeas relief for Ground 2d. 4 F. Ground 3 5 In Ground 3, Maxwell alleges that his federal constitutional rights were violated 6 due to the cumulative errors of his trial and appellate counsel. (ECF No. 4 at 15.) In 7 affirming the denial of his state habeas petition, the Nevada Supreme Court held: 8 “Maxwell argues that the cumulative effect of counsel’s errors warrants relief. As we 9 have found no error related to trial and appellate counsel, there is nothing to cumulate.” 10 (ECF No. 14-48 at 6.) This ruling was reasonable. 11 Cumulative error applies where, “although no single trial error examined in 12 isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple 13 errors may still prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381 14 (9th Cir. 1996); see also Parle v. Runnels, 387 F.3d 1030, 1045 (9th Cir. 2004) 15 (explaining that the court must assess whether the aggregated errors “‘so infected the 16 trial with unfairness as to make the resulting conviction a denial of due process’” (citing 17 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). This Court has not identified any 18 definite errors on the part of Maxwell’s trial counsel, so there are no errors to cumulate. 19 Maxwell is denied federal habeas relief for Ground 3. 20 V. CERTIFICATE OF APPEALABILITY 21 This is a final order adverse to Maxwell. Rule 11 of the Rules Governing Section 22 2254 Cases requires this Court to issue or deny a certificate of appealability (“COA”). 23 Therefore, this Court has sua sponte evaluated the claims within the petition for suitability 24 for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 25 864-65 (9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when 26 the petitioner “has made a substantial showing of the denial of a constitutional right.” With 27 respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable 1 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 2 880, 893 & n.4 (1983)). Applying this standard, this Court finds that a certificate of 3 appealability is unwarranted. 4 VI. CONCLUSION 5 It is therefore ordered that the petition for a writ of habeas corpus pursuant to 28 6 U.S.C. § 2254 by a person in state custody (ECF No. 4) is denied. 7 It is further ordered that Petitioner is denied a certificate of appealability. 8 The Clerk of Court is directed to enter judgment accordingly and close this case. 9 DATED THIS 12th Day of May 2021. 10
12 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27