3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 RAFAEL REID, Case No. 3:17-cv-00532-HDM-CLB
6 Petitioner ORDER 7 v.
8 WILLIAM GITTERE, et al., 9 Respondents 10 11 Petitioner, Rafael Reid (“petitioner” or “Reid”), challenges 12 his 2015 Nevada state convictions, pursuant to guilty pleas, for 13 attempted sexual assault and robbery. The second amended petition 14 under 28 U.S.C. § 2254 (“petition”) is before the Court for 15 adjudication on the merits.1 (ECF No. 32). 16 In his petition, Reid claims his guilty pleas were not knowing 17 and voluntary because, prior to entering them, trial counsel (1) 18 failed to show him the victim’s sexual assault nurse examination 19 (SANE) report, and (2) grossly mischaracterized Reid’s chances for 20 probation. The Court previously ruled all of Reid’s claims are 21 procedurally defaulted, but the abandonment of Reid by his 22 appellate counsel constitutes cause to overcome the procedural 23 default. (ECF No. 55 at 14–15.) The Court deferred ruling whether 24 Reid has shown prejudice to overcome the procedural default. (Id. 25 at 16.) For the reasons discussed below, the Court denies an 26 evidentiary hearing, dismisses the claims in the petition with 27 prejudice, and denies a certificate of appealability. 28 /// 1 Background 2 A. Offenses 3 According to Karla Harris’s voluntary statement to police on 4 April 16, 2015, she arrived at a vacant house in Las Vegas, Nevada 5 that night in response to a call, based on her advertisement in 6 backpage.com, to perform a private dance. (ECF No. 19–1 at 3.) 7 Harris went inside the house, and when she asked for payment up- 8 front, Reid pulled out a black and pink firearm and ordered Harris 9 to remove her clothes and get on her hands and knees. (Id. at 3– 10 4.) Harris heard a condom open and then Reid held the firearm to 11 her head while he performed sexual intercourse on her from behind. 12 (Id. at 3–4, 19.) According to Harris, Reid ejaculated, went to 13 the bathroom, flushed the toilet, and ordered Harris at gunpoint 14 into the bathroom. (Id. at 3-4, 20) Reid left the premises and 15 Harris discovered Reid took her phone and underwear. (Id. at 5.) 16 According to the SANE report,1 a nurse found no blunt force 17 trauma to Harris’s knees or palms but noted an abrasion at the 6 18 o’clock position of her posterior fourchette. (ECF No. 19-2 at 5.) 19 According to the report, Harris told the nurse she “slipped on her 20 buttocks Saturday,” and last had consensual intercourse on January 21 1, 2013. (Id. at 4.) 22 Police traced calls to Harris from Reid’s telephone. (ECF No. 23 70-3 at 3.) DNA tests confirmed Reid’s sperm was inside the 24 bathroom of the vacant house and police found a black and pink 25 firearm at Reid’s home. (Id.) 26
27 1 Reid presented the SANE report to the state courts under seal as an exhibit in support of his untimely postconviction review petition. (ECF Nos. 28 see also 1 B. Proceedings Before Entry of Guilty Pleas 2 Reid was charged by complaint with (1) burglary while in 3 possession of a firearm; (2) first-degree kidnapping with use of 4 a deadly weapon; (3) sexual assault with use of a deadly weapon; 5 and (4) robbery with use of a deadly weapon. (ECF No. 39-9 at 12– 6 13.) He waived preliminary hearing and was held to answer for the 7 charges by information. (Id. at 29–32, 37.) 8 The SANE nurse was disclosed as an expert witness and on 9 December 3, 2013, trial counsel acknowledged receipt of discovery. 10 (ECF No. 37-10 at 5.) The State provided trial counsel with six 11 notices between February 13, 2014, and August 7, 2014, in which it 12 disclosed the SANE nurse as a witness and stated, “[t]he substance 13 of each expert witness testimony and copy of all reports made by 14 or at the direction of the expert witness has been provided in 15 discovery.” (ECF Nos. 37-17 at 2–3; 37-19 at 2–3; 37-20 at 3, 5; 16 37-21 at 3, 5; 37-23 at 3, 5; 37-27 at 3, 5.) 17 C. Guilty Pleas 18 On August 22, 2014, Reid pleaded guilty to attempted sexual 19 assault and robbery in exchange for the State’s agreement not to 20 oppose a concurrent sentence, dismissal of all charges in the 21 information, and dismissal of a separate pending case. (ECF Nos. 22 37-31 at 3–4; 38-18 at 7–16.) 23 Reid signed a guilty plea agreement confirming he understood 24 the state district court “must” sentence him to imprisonment in 25 the Nevada Department of Corrections. (ECF No. 38-18 at 8.) He 26 confirmed he was not “promised or guaranteed any particular 27 sentence by anyone” and understood his “sentence is to be 28 determined by the Court within the limits prescribed by statute.” 1 (Id. at 10.) He verified he understands “except as otherwise 2 provided by statute, the question of whether [he] receive[d] 3 probation is in the discretion of the sentencing judge.” (Id. at 4 9.) He confirmed he signed the agreement “voluntarily, after 5 consultation with [his] attorney,” and did not do so “under duress 6 or coercion or by virtue of any promises of leniency, except for 7 those set forth” in the agreement. (Id. at 12.) 8 In the guilty plea agreement, Reid also confirmed he 9 understood that he was not eligible for probation unless he 10 submitted to a psychosexual evaluation and the evaluator certified 11 he did not present a high risk to reoffend “based upon a currently 12 acceptable standard of assessment.” (Id. at 9.) The agreement set 13 forth the applicable statutes, NRS §§ 176A.110 and 176.139, 14 concerning eligibility for probation, which listed criteria used 15 for determining whether he presented a high risk. (Id.) 16 By his agreement, Reid confirmed he discussed with trial 17 counsel “any possible defenses, defense strategies and 18 circumstances which might be in [his] favor” and “[a]ll of the 19 foregoing elements, consequences, rights, and waivers of rights” 20 were “thoroughly explained” to him by counsel. (Id. at 12.) The 21 agreement further confirmed counsel “answered all of [his] 22 questions regarding [the] guilty plea agreement and its 23 consequences to [his] satisfaction” and he was “satisfied with the 24 services provided” by trial counsel. (Id. at 13.) Counsel signed 25 a certification confirming the allegations contained in the 26 charges to which Reid pleaded guilty were “fully explained,” 27 counsel advised Reid “of the penalties for each charge,” and Reid 28 “understands the charges and the consequences of pleading guilty 1 as provided in this agreement.” (Id. at 14.) 2 At the change of plea hearing, Reid confirmed he could read, 3 write, and understand English; that he read, understood, and signed 4 the guilty plea agreement; and that he entered guilty pleas 5 pursuant to the guilty plea agreement. (ECF No. 37-31 at 3–5.) He 6 confirmed he understood the charges, pleaded guilty “freely and 7 voluntarily,” and [o]ther than what is contained in the agreement, 8 no one made him any promises that induced him to enter into the 9 agreement. (Id.) Reid confirmed trial counsel discussed with him 10 the requirements for proving the charges and defenses to those 11 charges. (Id. at 7.) He agreed all of his questions were answered 12 to his satisfaction and he had no questions for the sentencing 13 court. (Id. at 5, 7–8.) 14 Regarding his sentence, Reid confirmed he understood he was 15 facing 2 to 20, and 2 to 15, years in the Nevada Department of 16 Corrections for the offenses and the State would not oppose 17 concurrent sentences. (Id.) Trial counsel confirmed the offenses 18 to which Reid pleaded guilty “are probationable” offenses and Reid 19 confirmed he understood the state district court required 20 certification that Reid did not “represent a high risk to reoffend” 21 before the court could consider probation. (Id. at 5–6.) 22 Reid stated he was guilty of the sexual assault because he 23 lured “someone into an abandoned house and attempted to have sexual 24 relationship with [her]” against her will and confirmed he 25 committed the robbery by stealing the phone in Harris’s presence, 26 by means of force or violence, or fear of injury to, and without 27 her consent and against her will. (Id. at 8.) 28 After the state district court accepted Reid’s guilty pleas, 1 trial counsel requested a bail reduction. (Id. at 9–10.) Reid 2 stated he pleaded guilty because he wished to go home to his 3 family, but also confirmed he pleaded guilty because he was guilty. 4 (Id. at 10.) The State told the court that trial counsel had 5 informed Reid the State would ask for “a substantial amount of 6 time” at sentencing. (Id. at 9.) Trial counsel explained Reid 7 desired a bail reduction because it was his intention “to get his 8 family set up” “in the event he does end up spending significant 9 time away.” (Id. at 9–10.) The motion was denied. (Id. at 11.) 10 D. Motion to Strike Psychosexual Evaluation 11 On October 20, 2014, a psychosexual evaluation was conducted. 12 (ECF No. 19-3 at 2–3.) According to the evaluation, Reid denied 13 having sex with Harris or taking her phone or underwear. (Id. at 14 9–10.) When asked why he pleaded guilty to the charges if he did 15 not commit the offenses, Reid told the evaluator that his mother- 16 in-law died and his wife “just want [sic] me home.” (Id.) Reid was 17 certified a high risk for re-offense. (Id. at 11–13.) 18 On December 8, 2014, Reid underwent a mental health evaluation 19 during which he admitted to the evaluator that most of what Harris 20 said in her voluntary statement to police was accurate. (ECF No. 21 19-4 at 3, 5–6.) Reid explained he was dishonest with the 22 psychosexual evaluator because she used profanity, he did not trust 23 her, and she said he could only obtain a low-risk evaluation if he 24 admitted he committed the crimes. (Id.) The mental health evaluator 25 opined Reid’s criminal history and the offense dynamics put the 26 psychosexual evaluator on notice that Reid would not score a low 27 risk for reoffending even if he admitted the offenses. (Id.) 28 On January 21, 2015, trial counsel filed a motion to strike 1 the psychosexual evaluation and requested a new one. (ECF Nos. 37- 2 10 at 15; 37-18 at 3–4; 37-35 at 4–5.) Counsel alleged, inter alia, 3 that the evaluator berated Reid for “taking this deal,” and 4 recommended restrictions if Reid was granted probation. (ECF Nos. 5 37-35 at 5; 37-38 at 3.) The State opposed the motion by attaching 6 a letter from the psychosexual evaluator explaining, inter alia, 7 she questioned Reid’s decision about the plea because Reid claimed 8 he was not guilty of the crimes. (ECF No. 37-36 at 9.) On February 9 26, 2015, the state district court denied the motion to strike the 10 evaluation. (ECF No. 37-38 at 7.) 11 On March 2, 2015, the state district court received a letter 12 from Reid dated February 23, 2015, in which he claims he received 13 the SANE report after his guilty plea and would not have pleaded 14 guilty had he known the report contained information that Harris, 15 inter alia, (1) could have obtained the abrasion from her slip and 16 fall on her buttocks; (2) had no blunt force trauma to her knees 17 or palms; and (3) attempted to get pregnant. (ECF No. 39-8 at 32– 18 42.) The letter contains no allegation that trial counsel assured 19 him a probationary sentence. (Id.) 20 E. Motion to Withdraw the Guilty Pleas 21 On March 12, 2015, trial counsel informed the state district 22 court that Reid wished to withdraw his guilty plea, and the state 23 district permitted trial counsel to withdraw and appointed new 24 counsel for the motion to withdraw the guilty pleas. (ECF Nos. 37- 25 10 at 17; 37-40 at 4.) 26 On September 14, 2015, Reid’s new counsel filed a motion to 27 withdraw the guilty plea. (ECF No. 38-2.) The motion asserted Reid 28 was aware of the SANE report because the State suggested in prior 1 proceedings that it contained inculpatory evidence. (Id. at 4.) 2 Reid claimed he requested a copy of the SANE report from trial 3 counsel, but it was not provided until after he enter the guilty 4 pleas, and he never would have pleaded guilty had he known the 5 contents of that report because it differed from the State’s 6 representations in court. (Id. at 5.) The motion also claimed Reid 7 wished to withdraw his guilty plea because trial counsel induced 8 him to accept the plea agreement by assuring him a probationary 9 sentence. (Id.) The attorney who prepared the motion for Reid did 10 not verify those allegations, made no representations as to their 11 truth or falsity, and did not attach a copy of the SANE report or 12 other exhibits to support the motion. (Id. at 5, n.1.) The parties 13 submitted the motion on the pleadings, and the state district court 14 denied the motion. (ECF Nos. 38-3; 38-4 at 3.) 15 F. Sentencing 16 Reid was sentenced on December 1, 2015. (ECF No. 38-5.) The 17 State asked the state district court to impose concurrent sentences 18 of 8 to 20 years imprisonment arguing Reid was “very much somebody 19 who’s looking at a habitual” with, inter alia, 3 prior felonies, 20 3 prior gross misdemeanors, and 11 misdemeanors, had a rare high- 21 risk psychosexual evaluation, and received “the benefit of the 22 bargain” as he did not face “decades in prison.” (Id. at 5-7.) 23 Reid reiterated his desire to withdraw his guilty plea because 24 he did not see the SANE report prior to entering his guilty pleas. 25 (Id. at 7–9.) The state district court acknowledged Reid’s letter 26 about the SANE report but noted the report does not state Reid did 27 not sexually assault Harris and the court believed Reid overstated 28 the SANE report’s support for his case. (Id.) Reid acknowledged 1 the SANE report did not say “it didn’t happen” but claimed the 2 report failed to prove he did anything to Harris and contradicted 3 the details of Harris’s account of their activities. (Id. at 8–9.) 4 Reid also complained that trial counsel told him he had “no 5 fighting chance” at trial because the case would boil down to his 6 word against Harris’s and failed to show him any evidence in his 7 favor. (Id.) Reid said he pleaded guilty to sexual assault, not 8 because his is guilty, but because trial counsel told him he was 9 “going to get probation” even though his “extensive criminal 10 history shows” he would evaluate as high risk for re-offense. (Id. 11 at 9–11.) The court concluded Reid wished only to withdraw his 12 guilty plea because “he knows he’s not eligible for probation” and 13 sentenced Reid to imprisonment for an aggregate term of 8 to 20 14 years. (ECF Nos. 38-5 at 14; 38-7 at 3.) 15 Standards of Review 16 Where a petitioner “has defaulted his federal claims in state 17 court pursuant to an independent and adequate state procedural 18 rule,” federal habeas review “is barred unless the prisoner can 19 demonstrate cause for the default and actual prejudice as a result 20 of the alleged violation of federal law, or demonstrate that 21 failure to consider the claims will result in a fundamental 22 miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 23 (1991). To demonstrate cause, the petitioner must establish that 24 some external and objective factor impeded efforts to comply with 25 the state’s procedural rule. E.g., Maples v. Thomas, 565 U.S. 266, 26 280, 289 (2012) (finding cause to excuse procedural default due to 27 attorney abandonment but remanding for a determination of 28 prejudice); McCleskey v. Zant, 499 U.S. 467, 497 (1991) (holding 1 that for cause to exist, the external impediment must have 2 prevented the petitioner from raising the claim). “[T]o establish 3 prejudice, [a petitioner] must show not merely a substantial 4 federal claim, such that ‘the errors . . . at trial created a 5 possibility of prejudice,’ but rather that the constitutional 6 violation ‘worked to his actual and substantial 7 disadvantage.’” Shinn v. Ramirez ;, No. 20-1009, 2022 WL 1611786, 8 at *7 (U.S. May 23, 2022) (citing Murray v. Carrier, 477 U.S. 478, 9 494 (1986) (quoting United States v. Frady, 456 U.S. 152, 170 10 (1982)) (emphasis in original). 11 Discussion 12 A. Ground One—Voluntariness of Guilty Plea2 13 In ground 1, Reid claims his guilty plea is not knowing and 14 voluntary in violation of the Fifth, Sixth, and Fourteenth 15 Amendments because (a) he pleaded guilty without having first seen 16 the SANE report and (b) trial counsel grossly mischaracterized the 17 likelihood of a probationary sentence. (ECF No. 32 at 10–13.) 18 1. Standards for Evaluating the Voluntariness of a Guilty Plea 19 20 “The longstanding test for determining the validity of a 21 guilty plea is ‘whether the plea represents a voluntary and 22 intelligent choice among the alternative courses of action open to 23 the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985) 24 (citations omitted). “The voluntariness of [a guilty plea] can be 25 determined only by considering all of the relevant circumstances 26
27 2 The Court subdivides the grounds 1 and 2. Grounds 1(a) and 2(a) concern Reid’s allegations related to the SANE report and grounds 1(b) and 2(b) concern 28 1 surrounding it.” Brady v. United States, 397 U.S. 742, 749 (1970). 2 In addressing the standard applicable to the voluntariness of 3 guilty pleas, the Supreme Court endorsed the following definition: 4 (A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any 5 commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats . . . 6 misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are 7 by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes). 8 9 Id. at 755 (citation and footnote omitted). 10 “[T]he Constitution, in respect to a defendant’s awareness of 11 relevant circumstances, does not require complete knowledge of the 12 relevant circumstances”; rather, it “permits a court to accept a 13 guilty plea, with its accompanying waiver of various 14 constitutional rights, despite various forms of misapprehension 15 under which a defendant might labor.” United States v. Ruiz, 536 16 U.S. 622, 630–31 (2002) (noting it is “particularly difficult to 17 characterize impeachment information [not disclosed in discovery] 18 as critical information of which the defendant must always be aware 19 prior to pleading guilty given the random way in which such 20 information may, or may not, help a particular defendant.”). 21 “[T]he representations of the defendant, his lawyer, and the 22 prosecutor [at a plea hearing], as well as any findings made by 23 the judge accepting the plea, constitute a formidable barrier in 24 any subsequent collateral proceedings” because “[s]olemn 25 declarations in open court carry a strong presumption of verity.” 26 Blackledge v. Allison, 431 U.S. 63, 73–74 (1977). Substantial 27 weight is accorded to the defendant’s contemporaneous on-the- 28 record statements in assessing the voluntariness of a guilty plea. 1 United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991). A habeas 2 petitioner bears the burden of establishing his guilty plea was 3 not voluntary and knowing. Little v. Crawford, 449 F.3d 1075, 1080 4 (9th Cir. 2006). 5 2. SANE Report 6 In ground 1(a), Reid claims his guilty plea is not knowing 7 and voluntary because he pleaded guilty without having first seen 8 certain information in the SANE report. (ECF No. 32 at 10-11.)3 9 Reid admitted he was aware of the existence of the SANE report 10 based on the State’s representations about it during court hearings 11 prior to entry of the guilty plea and the record demonstrates the 12 SANE report was produced to trial counsel in discovery at the very 13 latest several months prior to Reid’s guilty plea in August of 14 2014. Reid confirmed in his plea agreement and at the change of 15 plea hearing that he spoke with counsel about “any possible 16 defenses, defense strategies, and circumstances which might be in 17 [his] favor.” Reid also stated counsel informed him he “had no 18 fighting chance” at trial as the result depended on a credibility 19 contest between Reid and Harris. 20 As the state district court noted, the SANE report contains 21 no exonerating information. Reid claims the SANE report 22 contradicts Harris’s story that she was on her hands and knees for 23 the sexual assault because the nurse found no blunt force trauma 24 to Harris’s hands and knees. (ECF No. 32 at 10.) Reid overlooks 25
26 3 Reid raised a claim on direct appeal that his guilty plea was not knowing and voluntary, however, for purposes of his petition, Reid contends that 27 “[b]ecause the state courts did not adjudicate any of Mr. Reid’s claims on their merits, § 2254 does not apply at all to Mr. Reid’s case.” (See ECF No. 67 at 28 See also, infra 1 that sexual assault does not inescapably lead to blunt force 2 trauma. Reid claims that, although nurses found an abrasion on 3 Harris’s posterior fourchette, it may have been caused by Harris’s 4 admitted fall on her buttocks or her efforts to become pregnant. 5 (ECF No. 32 at 10-11.) Again, Reid overlooks that sexual assault 6 does not necessarily lead to injury. Moreover, the report does not 7 necessarily undermine Harris’s credibility as she told the nurse 8 she fell on her buttocks and, other than the sexual assault, her 9 last sexual encounter occurred on January 1, 2013. Trial counsel 10 advised Reid the trial would be focused on Harris’s credibility 11 and SANE report does not foreclose the possibility that Reid 12 sexually assaulted and robbed Harris. As the state district court 13 surmised, receipt of the SANE report after Reid pleaded guilty is 14 insufficient to undermine the conclusion that Reid’s decision to 15 accept the plea agreement and enter guilty pleas represented a 16 voluntary choice among known alternative courses of action. 17 Under the totality of the circumstances, Reid fails to 18 demonstrate requisite prejudice to overcome the procedural default 19 of ground 1(a). Accordingly, ground 1(a) is dismissed as 20 procedurally defaulted. 21 3. Probationary Sentence 22 In ground 1(b), Reid alleges his guilty plea is not knowing 23 and involuntary because he relied upon trial counsel’s gross 24 mischaracterization of his chances for a probationary sentence and 25 would have exercised his right to trial had he been provided 26 reasonable advice. (ECF No. 32 at 12-14.) 27 The state court record belies Reid’s assertion that trial 28 counsel assured him a probationary sentence. Reid signed a plea 1 agreement “freely and voluntarily” in which he confirmed “no one 2 made any promises to induce [him] to enter into the agreement.” He 3 confirmed he understood the state district court made the 4 sentencing decision and had sole discretion whether to grant 5 probation or not. Although the plea agreement discloses the 6 offenses for attempted sexual assault and robbery are probation- 7 eligible offenses under certain statutory and other conditions, 8 nothing in the plea agreement guarantees or promises Reid a 9 probationary sentence. Reid confirmed in his plea agreement and at 10 his chance of plea hearing, that he understood the determinations 11 necessary for the court to consider a probationary sentence were 12 wholly dependent upon the discretion of the psychosexual evaluator 13 and the discretion of the sentencing court. 14 The state court record further establishes Reid knew there 15 was a significant probability he would be sentenced to imprisonment 16 rather than probation. Moments after entering his guilty pleas, 17 Reid asked for a bail reduction so he could “get his family set 18 up” “in the event he does end up spending significant time away.” 19 Thus, Reid was not only aware that a probationary sentence was not 20 guaranteed; Reid wished to prepare for that potential outcome. 21 That the odds of obtaining probationary sentence fell short of 22 Reid’s hope and desire did not render his guilty pleas not knowing 23 and voluntary given he was on notice probation was not assured. 24 See Brady, 397 U.S. at 756-57 (“A defendant is not entitled to 25 withdraw his plea merely because he discovers long after the plea 26 has been accepted that his calculus misapprehended the quality of 27 the State’s case or the likely penalties attached to alternative 28 courses of action.”). 1 Under the totality of the circumstance set forth in the state 2 court record, Reid falls fails to demonstrate requisite prejudice 3 necessary to overcome the procedural default of ground 1(b). 4 Accordingly, ground 1(b) is dismissed as procedurally defaulted. 5 B. Ground 2—Ineffective Assistance of Trial Counsel 6 In ground 2, Reid alleges trial counsel was ineffective in 7 violation of the Fifth, Sixth, and Fourteenth Amendments because 8 prior to his entering his guilty pleas, counsel (a) failed to 9 provide him a copy of the SANE report and (b) grossly 10 mischaracterized his chances of a probationary sentence. (ECF No. 11 32 at 13–14.) 12 1. Standards for Evaluating Effective-Assistance-of- Counsel 13 14 For claims of ineffective assistance of counsel, a petitioner 15 must demonstrate (1) counsel’s “representation fell below an 16 objective standard of reasonableness[;]” and (2) counsel’s 17 deficient performance prejudiced the petitioner such that “there 18 is a reasonable probability that, but for counsel’s unprofessional 19 errors, the result of the proceeding would have been different.” 20 Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). “A 21 reasonable probability is a probability sufficient to undermine 22 confidence in the outcome.” Id. at 694. “The likelihood of a 23 different result must be substantial, not just conceivable.” 24 Harrington v. Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 25 466 U.S. at 693). “An assessment of the likelihood of a result 26 more favorable to the defendant must exclude the possibility of 27 arbitrariness, whimsy, caprice, ‘nullification,’ and the like.” 28 Strickland, 466 U.S. at 695. 1 “[T]he Sixth Amendment does not guarantee the right to perfect 2 counsel; it promises only the right to effective assistance.” Burt 3 v. Titlow, 571 U.S. 12, 24 (2013). In considering an ineffective 4 assistance of counsel claim, a court “must indulge a strong 5 presumption that counsel’s conduct falls within the wide range of 6 reasonable professional assistance.” Strickland, 466 U.S. at 689. 7 A petitioner making an ineffective assistance claim “must identify 8 the acts or omissions of counsel that are alleged not to have been 9 the result of reasonable professional judgment.” Id. at 690. It is 10 a petitioner’s burden to show “counsel made errors so serious that 11 counsel was not functioning as the ‘counsel’ guaranteed . . . by 12 the Sixth Amendment.” Id. at 687. 13 The constitutional right to effective assistance of counsel 14 in criminal proceedings extends to the plea-bargaining 15 process. See Hill, 474 U.S. at 56–58. Where a defendant enters a 16 guilty plea upon counsel’s advice, “voluntariness of the plea 17 depends on whether counsel’s advice ‘was within the range of 18 competence demanded of attorneys in criminal cases.’” Id. at 56 19 (holding Strickland applies to challenges to guilty pleas based on 20 ineffective assistance of counsel). “[S]trict adherence to 21 the Strickland standard [is] all the more essential when reviewing 22 the choices an attorney made at the plea bargain stage” and “habeas 23 courts must respect their limited role in determining whether there 24 was manifest deficiency in light of information then available to 25 counsel.” Premo v. Moore, 562 U.S. 115, 125 (2011). 26 2. SANE Report 27 Reid claims there is no strategic reason for trial counsel’s 28 failure to provide him a copy of the SANE report prior to the 1 guilty plea, and but for counsel’s failure to do so, Reid would 2 not have pleaded guilty and would have exercised his right to 3 trial. (ECF No. 32 at 14.) The state court record, however, 4 demonstrates that, under the circumstances, trial counsel’s 5 failure to provide Reid with a copy of the SANE report prior to 6 the guilty pleas did not fall below an objective standard of 7 reasonableness. 8 The record shows that prior to entering the guilty pleas, 9 counsel received the SANE report, Reid was aware of the SANE 10 report, counsel discussed with Reid the probable effects of going 11 to trial based on a defense that consisted of attempts to impeach 12 Harris, and counsel advised him it was a difficult defense on which 13 to succeed. Consistent with counsel’s advice, the state court 14 record shows Harris’s account of the offenses was likely to be 15 supported at trial by evidence that police found the distinctive 16 black and pink firearm in Reid’s home, Reid’s semen in the bathroom 17 of the vacant house, and a record of Reid’s phone calls to Harris. 18 Reid alleges trial counsel’s actions were deficient and 19 prejudicial because he was unaware at the time that he entered his 20 guilty pleas that the SANE report contradicted Harris’s story that 21 she was on her hands and knees during the sexual assault because 22 the SANE nurse found no blunt force trauma to Harris’s hands and 23 knees. However, an objectively reasonable attorney could 24 anticipate that information would not materially impeach Harris at 25 trial as the State might persuasively contend the sexual assault 26 would not have inescapably led to blunt force trauma to Harris’s 27 hands and knees. Reid also alleges he was unaware of Harris 28 admitted her fall on her buttocks, and her sexual activity, 1 including her efforts to become pregnant, which he claims could 2 explain the abrasion the nurse found on Harris’s posterior 3 fourchette. However, an objectively reasonable attorney could 4 anticipate this information was not necessarily impeaching given 5 the State might persuasively contend sexual assault does not 6 necessarily lead to injury. Moreover, the report does not 7 necessarily undermine Harris’s credibility as she admitted she 8 fell on her buttocks and, other than the sexual assault, she told 9 the nurse her last sexual encounter occurred on January 1, 2013. 10 Reid also fails to demonstrate a reasonable probability he 11 would have opted for trial, instead of pleading guilty, had counsel 12 shown him the SANE report before he pleaded guilty. As the state 13 district court noted, the report does not prove Reid did not commit 14 the offenses or contradict the evidence gathered by police, 15 including the presence of Reid’s semen in the vacant house. Given 16 trial counsel’s advice to Reid about the probable effects of going 17 to trial, failure to provide the SANE report to Reid did not 18 deprive him of information that would have materially changed the 19 calculus whether to exercise his right to trial or accept the plea 20 agreement and fails to show Reid did not exercise a voluntary and 21 intelligent choice among alternative courses of action. 22 Under the totality of the circumstances in the state court 23 record, Reid fails to establish the requisite actual prejudice 24 required to overcome his procedural default for ground 2(a). 25 Accordingly, ground 2(a) is dismissed as procedurally defaulted. 26 3. Probationary Sentence 27 In ground 2(b), Reid alleges there can be no strategic reason 28 for trial counsel’s “grossly inaccurate prediction that Mr. Reid 1 would receive probation.” (ECF No. 32 at 14.) 2 When a defendant considers a plea agreement, reasonably 3 competent counsel will attempt to learn all the facts of the case 4 and make an estimate of a likely sentence. Hill, 474 U.S. at 56– 5 60 (relying on McMann v. Richardson, 397 U.S. 759, 769–71 (1970)). 6 However, “erroneous predictions regarding a sentence are deficient 7 only if they constitute ‘gross mischaracterization of the likely 8 outcome’ of a plea bargain ‘combined with . . . erroneous advice 9 on the probable effects of going to trial.’” United States v. 10 Keller, 902 F.2d 1391, 1394 (9th Cir.1990) (quoting Iaea v. Sunn, 11 800 F.2d 861, 864–65 (9th Cir. 1986)). 12 The state court record belies Reid’s assertion that trial 13 counsel assured him a probationary sentence. Reid signed a plea 14 agreement “freely and voluntarily” in which he confirmed “no one 15 made any promises to induce [him] to enter into the agreement.” He 16 also confirmed he understood the state district court made the 17 sentencing decision and had sole discretion whether to grant 18 probation or not. The plea agreement includes provisions stating 19 the offenses for attempted sexual assault and robbery are 20 probation-eligible offenses under certain statutory and other 21 conditions but does not guarantee or promise Reid a probationary 22 sentence. Reid also confirmed in his plea agreement and at his 23 chance of plea hearing, that he understood the determinations 24 necessary for the court to consider a probationary sentence were 25 wholly dependent upon the discretion of the psychosexual evaluator 26 and the discretion of the sentencing court. 27 The state court record further establishes Reid knew there 28 was a significant probability he would be sentenced to imprisonment 1 rather than probation as, shortly after Reid entered his guilty 2 pleas, trial counsel explained to the state district court that 3 Reid desired a bail reduction so he could “get his family set up” 4 “in the event he does end up spending significant time away.” 5 Even assuming trial counsel grossly mischaracterized Reid’s 6 chances for probation, counsel’s accurate advice about the 7 probable effects of going to trial demonstrates counsel performed 8 reasonably under the totality of the circumstances. As discussed, 9 the state court record reveals, strong evidence supported Harris’s 10 account of the offenses, making it reasonable for trial counsel 11 and Reid to predict that trial could result in convictions for the 12 charges in the information for which probation was not a 13 possibility, and if so, Reid could be sentenced to a longer term 14 of imprisonment than for the offenses to which he pleaded guilty.4 15 That Reid’s chances, and attempt to, procure a probationary 16 sentence ultimately fell short of his desires does not render 17 involuntary Reid’s choice among the alternative courses of action 18 presented to him. 19 Even assuming Reid was not accurately informed about his 20 chances for probation, he fails to show a reasonable probability 21 the result of the proceedings would have been different had trial 22 counsel informed him that his chances for a probationary sentence 23 were low. The plea agreement and the state district court’s plea 24 4 Reid acknowledged in his motion to withdraw his guilty plea that he “is 25 well aware that the pleas he has entered in this case carry a significantly lower maximum sentence than the charges with which he originally faced.” (ECF 26 No. 38-2 at 6.) This is supported by the information, which charged, inter alia, sexual abuse with a deadly weapon, not causing substantial bodily harm, which 27 was punishable for 10 years to life plus an equal and consecutive term of imprisonment for 1 to 20 years. (ECF No. 37-11.) See NRS §§ 193.165; 200.364; 28 as amended by 1 canvass alerted Reid that a probationary sentence was not 2 guaranteed, the State represented that it would seek a lengthy 3 prison sentence, and Reid confirmed he understood that prior to 4 entering into the plea agreement, he was not guaranteed a 5 particular sentence. See Doganiere v. United States, 914 F.2d 165, 6 168 (9th Cir. 1990)(holding that the petitioner “suffered no 7 prejudiced from his attorneys’ prediction because, prior to 8 accepting his guilty plea, the court explained that the discretion 9 as to what the sentence would be remained entirely with the 10 court.”); see also Womack v. Del Papa, 497 F.3d 998, 1003–04 (9th 11 Cir. 2007) (holding petitioner was not prejudiced even if counsel 12 failed to inform him about the unavailability of parole, because 13 the written plea agreement and state court judge informed 14 petitioner the state retained the right to argue for a sentence 15 without parole.) Given Reid’s expectations when he accepted the 16 plea offer, his after-the-fact assertion that he would not have 17 accepted it but for his counsel’s deficient advice about the odds 18 of successfully obtaining probation, is implausible. See, 19 e.g., Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997) (“Jones’s 20 contention that he would have ‘cut his losses’ and accepted the 21 plea offer if he believed it was open to him, is implausible in 22 light of what Jones knew at the time the offer was made.”). 23 For these reasons, Reid fails to establish the requisite 24 actual prejudice to overcome his procedural default of ground 2(b). 25 Accordingly, ground 2(b) is dismissed as procedurally defaulted. 26 C. Ground 3—Ineffective Assistance of Appellate Counsel 27 In ground 3, Reid alleges appellate counsel was ineffective 28 in violation of the Fifth, Sixth, and Fourteenth Amendments by 1 failing to “litigate the precise claims raised” in ground 1. (ECF 2 No. 32 at 14–15.) 3 To prevail on an ineffective assistance of appellate counsel 4 claim, a petitioner must show (1) appellate counsel “unreasonable 5 failed to discover nonfrivolous issues and to file a merits brief 6 raising them” and (2) “a reasonable probability that, but for his 7 counsel’s [unreasonable performance], he would have prevailed on 8 his appeal.” Smith v. Robbins, 528 U.S. 259, 285–86 (2000). 9 “[A]ppellate counsel who files a merits brief need not (and should 10 not) raise every nonfrivolous claim, but rather may select from 11 among them to maximize the likelihood of success on appeal.” Id. 12 at 288 (citing Jones v. Barnes, 463 U.S. 745 (1983)). The Ninth 13 Circuit has explained that the Strickland prongs “partially 14 overlap” when applying Strickland to a claim of ineffective 15 assistance of appellate counsel: 16 In many instances, appellate counsel will fail to raise an issue because she foresees little or no 17 likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the 18 hallmarks of effective appellate advocacy . . . Appellate counsel will therefore frequently remain above 19 an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same 20 reason—because she declined to raise a weak issue. 21 Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (citations 22 and footnotes omitted). 23 Reid’s appellate counsel filed a state court direct appeal 24 alleging Reid’s guilty plea was not voluntary and knowing because 25 he did not know “what may have been exculpatory evidence” contained 26 in the SANE report. (ECF No. 40-2 at 6–7.) The State filed an 27 opposition arguing the state district court did not abuse its 28 discretion in denying the motion to withdraw the guilty plea 1 because Reid failed to demonstrate there were exonerating facts in 2 the SANE report. (ECF No. 38-20 at 5–11.) The state appellate court 3 rejected the claim: 4 Appellant Rafael Reid claims the district court abused its discretion by denying his presentence motion 5 to withdraw guilty plea. A defendant may move to withdraw a guilty plea before sentencing, NRS 176.165, and “a 6 district court may grant a defendant’s motion to withdraw his guilty plea before sentencing for any 7 reason where permitting withdrawal would be fair and just,” Stevenson v. State, 131 Nev. ___, ___, 354 P. 3d 8 1277, 1281 (2015). To this end, the Nevada Supreme Court recently disavowed the standard previously announced in 9 Crawford v. State, 117 Nev. 718, 30 P.34 1123 (2001), which focused exclusively on whether the plea was 10 knowing, voluntarily, and intelligently made, and affirmed that “the district court must consider the 11 totality of the circumstances to determine whether permitting withdrawal of a guilty plea before sentencing 12 would be fair and just.” Stevenson, 131 Nev. at ___, 354 P.3d at 1281. 13 Reid claims he should have been able to withdraw 14 his guilty plea because counsel failed to provide him with a copy of the SANE exam report prior to him pleading 15 guilty. He claims this report contained potentially exculpatory evidence and he would not have pleaded 16 guilty had he read the report. Reid fails to allege what this potentially exculpatory evidence was, provide this 17 court with a copy of the SANE exam report, or provide this court with a transcript from the hearing on the 18 motion to withdraw his guilty plea. As the appellant, it is Reid’s burden to provide this court with an adequate 19 record for review. See McConnell v. State, 125 Nev. 243, 256 n.13, 212 P.3d 307, 319 n.13 (2009). We conclude 20 Reid fails to demonstrate the district court abused its discretion in denying the presentence motion to withdraw 21 the guilty plea . . . . 22 (ECF No. 38-23 at 1-2.) 23 Appellate counsel was confined to the state court record, so 24 failure to include the SANE report in the record on appeal was not 25 deficient performance under Strickland. For the reasons discussed 26 in ground 1, given the state court record, appellate counsel could 27 reasonably determine the precise allegations contained in ground 28 1 lacked substantive merit and would not have succeeded on appeal. 1 Appellate counsel could additionally and reasonably conclude the 2 state district court’s statements about its consideration of 3 Reid’s allegations about the SANE report and a probationary 4 sentence in rejecting his request to withdraw the guilty plea, did 5 not exhibit the arbitrariness necessary to overcome the abuse of 6 discretion standard applicable to appeals from Nevada state 7 district court determinations whether it was fair and just to 8 permit withdrawal of a guilty plea. See State v. Smith, 131 Nev. 9 628, 630, 356 P.3d 1092, 1094 (2015) (“An abuse of discretion 10 occurs if the district court’s decision is arbitrary or capricious 11 or if it exceeds the bounds of law or reason.”) (citing Jackson v. 12 State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001)). 13 Under the totality of the circumstances in the state district 14 court record at the time Reid’s appeal, Reid fails to establish 15 the requisite actual prejudice to overcome his procedural default 16 for ground 3. Accordingly, ground 3 is dismissed as procedurally 17 defaulted. 18 Consideration of Possible Issuance of a Certificate of Appealability 19 20 Under Rule 11 of the Rules Governing Section 2254 Cases, the 21 Court must issue or deny a certificate of appealability (COA) when 22 it enters a final order adverse to petitioner. 23 As to the claims rejected on procedural grounds, the 24 petitioner must show: (1) that jurists of reason would find it 25 debatable whether the petition stated a valid claim of a denial of 26 a constitutional right; and (2) that jurists of reason would find 27 it debatable whether the district court was correct in its 28 procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). 1 While both showings must be made to obtain a COA, “a court may 2 find that it can dispose of the application in a fair and prompt 3 || manner if it proceeds first to resolve the issue whose answer is 4 more apparent from the record and arguments.” Id. at 484. Where a 5 plain procedural bar is properly invoked, an appeal is not 6 |} warranted. Id. 7 The Court will deny a COA as to all claims. Jurists of reason 8 would not find debatable or wrong the denial of grounds 1, 2 and 9 3 as procedurally defaulted. 10 Conclusion 11 IT THEREFORE IS ORDERED that all claims in the operative 12 second amended petition (ECF No. 32) are DENIED as procedurally 13 defaulted and this action is DISMISSED with prejudice. 14 IT FURTHER IS ORDERED that Reid’s motion for an evidentiary 15 hearing (ECF No. 65) is DENIED.® 16 IT FURTHER IS ORDERED that a certificate of appealability is 17 DENIED as to all grounds. 18 The Clerk of the Court shall enter final judgment accordingly 19 in favor of respondents and against petitioner, dismissing this 20 action with prejudice. 21 DATED: this 3rd day of June, 2022. 22 bbviael” S Ht □□ □ 23 HOWARD D. MCKIBBEN UNITED STATES DISTRICT JUDGE
25 5 Reid’s motion for an evidentiary hearing is denied. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“It is axiomatic that when issues can be 26 resolved with reference to the state court record, an evidentiary hearing becomes nothing more than a futile exercise.”); see aiso Schriro v. Landrigan, 27 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not 28 required to hold an evidentiary hearing.”)