1 2 3 4 5 6 7 10 11 JAFFAR RICHARDSON, Case No. 3:21-cv-00203-HDM-CLB 12 Petitioner, ORDER 13 v. 14 PERRY RUSSELL, et al., 15 Respondents. 16 17 I. Introduction 18 This is a habeas corpus matter under 28 U.S.C. § 2254. Previously, the court dismissed 19 some grounds of the initial petition because they lacked merit, and the court directed petitioner 20 Jaffar Richardson to file an amended petition that made the two remaining grounds less vague. 21 ECF No. 7. Richardson has filed an amended petition. ECF No. 11. The court has reviewed the 22 amended petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United 23 States District Courts. The two grounds in the amended petition are without merit, and the court 24 denies the amended petition. 25 II. Procedural History 26 The court takes judicial notice of the on-line dockets of the Second Judicial District Court 27 of the State of Nevada, in cases cited below, the on-line docket of the Nevada Supreme Court in 28 1 Richardson v. State, Case No. 81738,1 and the inmate locator of the Nevada Department of 2 Corrections.2 3 A. Prior Criminal Convictions 4 On April 12, 2005, Richardson was convicted in the Second Judicial District Court of the 5 State of Nevada of one count of felony trafficking in a schedule 1 controlled substance, Case No. 6 CR04-1557B.3 7 On August 3, 2010, Richardson was convicted in the Second Judicial District Court of the 8 State of Nevada of one count of felony possession of a controlled substance for the purpose of 9 sale, Case No. CR09-2489.4 10 On August 3, 2010, Richardson was convicted in the Second Judicial District Court of the 11 State of Nevada of one count of felony driving under the influence, Case No. CR09-2492.5 12 On August 3, 2010, Richardson was convicted in the Second Judicial District Court of the 13 State of Nevada of one count of felony conspiracy to commit robbery, Case No. CR10-0561.6 14 This is not an exhaustive list of Richardson's prior convictions, just a list of convictions 15 from the Second Judicial District Court. For the purposes of this order, those four convictions are 16 sufficient. 17 B. The Conviction at Issue in This Case 18 In the Second Judicial District Court of the State of Nevada, Case No. CR16-1169,7 19 Richardson agreed to plead guilty to one count of trafficking in a controlled substance. 20 Richardson agreed to be sentenced as a "small" habitual criminal under Nev. Rev. Stat. 21 § 207.010(1)(a) (2009), with imprisonment for a minimum term of 8 years a maximum term of 20 22 years. ECF No. 11 at 2. Richardson did not appeal. ECF No. 11 at 1. Richardson did not file a 23 post-conviction habeas corpus petition in the state district court. ECF No. 11 at 1. 24
25 1 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=59801. 2 https://ofdsearch.doc.nv.gov/form.php. 26 3 https://www.washoecourts.com/Query/CaseInformation/CR04-1557B. 4 https://www.washoecourts.com/Query/CaseInformation/CR09-2489. 27 5 https://www.washoecourts.com/Query/CaseInformation/CR09-2492. 6 https://www.washoecourts.com/Query/CaseInformation/CR10-0561. 28 7 https://www.washoecourts.com/Query/CaseInformation/CR16-1169. 1 Richardson did file a motion to correct or modify an illegal sentence. ECF No. 11 at 5. 2 The state district court denied the motion. First, the state district court noted that the motion was 3 a disguised post-conviction habeas corpus petition that raised issues beyond the scope of a motion 4 to correct or modify an illegal sentence. ECF No. 8 at 9 (citing Edwards v. State, 918 P.2d 321, 5 324-25 & n.2 (Nev. 1996)). Second, the state district court addressed Richardson's claim that the 6 judgment of conviction stated erroneously that he had been adjudicated as a habitual criminal in 7 an earlier case. The state district court noted that the record before the sentencing court had no 8 mention of prior adjudication as a habitual criminal. The state district court also noted that the 9 sentencing court understood that this case was the first time that Richardson was being 10 adjudicated as a habitual criminal. The state district court thus corrected the clerical error that 11 Richardson previously had been adjudicated as a habitual criminal by issuing an amended 12 judgment of conviction without the erroneous phrase. ECF No. 8 at 9. The amended judgment of 13 conviction was entered on August 28, 2020. Richardson appealed the decision. ECF No. 1-1 at 14 3-4. The Nevada Court of Appeals affirmed. Richardson v. State, Case No. 81738-COA (Nev. 15 App. Mar. 25, 2021).8 16 III. Discussion 17 A. Ground 1 Is Without Merit 18 In ground 1 of the amended petition, Richardson alleges that the guilty plea agreement had 19 a provision that if he failed to stay out of trouble after accepting the agreement, then either the 20 prosecution could withdraw from the agreement and proceed to trial on the original charges or the 21 prosecution could argue at sentencing for any appropriate sentence, including "large" habitual- 22 criminal treatment under Nev. Rev. Stat. § 207.010(1)(b) (2009).9 Richardson argues that the 23 plea agreement misrepresented his criminal history, leading the state district court into believing 24 that Richardson could be sentenced as a "large" habitual criminal. Richardson also argues that 25
8 26 http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=60842&csIID=60842&deLinkID=810635&onBase DocumentNumber=21-08555. 27 9 The potential "large" habitual-criminal sentences are life imprisonment without the possibility of parole, life imprisonment with eligibility for parole beginning after a minimum of 10 years, or 25 years' imprisonment with 28 eligibility for parole beginning after a minimum of 10 years. Nev. Rev. Stat. § 207.010(1)(b)(1), (2), (3) (2009). 1 statements of the prosecutor and the defense counsel prove that he was threatened into pleading 2 guilty. 3 Richardson is incorrect. His criminal history in the Second Judicial District Court, four 4 felony convictions, by itself was sufficient for "large" habitual-criminal treatment at the time. 5 Nev. Rev. Stat. § 207.010(1)(b) (2009). The court has reviewed the transcript of Richardson's 6 change-of-plea hearing. Richardson v. State, Case. No. 81738, Record on Appeal v. 3, pp. 315- 7 43.10 Richardson entered his plea voluntarily, knowingly, and intelligently. If there was any 8 "threat," it merely was a warning that he would be facing a much longer prison term if he went to 9 trial and was convicted than if he accepted the plea agreement. Candid advice like that is not a 10 threat, but a recognition of the unpleasant reality into which Richardson put himself. Ground 1 is 11 without merit. 12 Reasonable jurists would not find the court's conclusion to be debatable or wrong, and the 13 court will not issue a certificate of appealability for ground 1. 14 B. Ground 2 Is Without Merit 15 In ground 2, Richardson claims that the prosecution failed to provide the state district 16 court with his history of abuse of controlled substances starting when he was 13. Richardson 17 argues that this information would have shown the state district court that he needed drug 18 treatment, not a prison sentence. This claim lacks merit for multiple reasons.
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1 2 3 4 5 6 7 10 11 JAFFAR RICHARDSON, Case No. 3:21-cv-00203-HDM-CLB 12 Petitioner, ORDER 13 v. 14 PERRY RUSSELL, et al., 15 Respondents. 16 17 I. Introduction 18 This is a habeas corpus matter under 28 U.S.C. § 2254. Previously, the court dismissed 19 some grounds of the initial petition because they lacked merit, and the court directed petitioner 20 Jaffar Richardson to file an amended petition that made the two remaining grounds less vague. 21 ECF No. 7. Richardson has filed an amended petition. ECF No. 11. The court has reviewed the 22 amended petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United 23 States District Courts. The two grounds in the amended petition are without merit, and the court 24 denies the amended petition. 25 II. Procedural History 26 The court takes judicial notice of the on-line dockets of the Second Judicial District Court 27 of the State of Nevada, in cases cited below, the on-line docket of the Nevada Supreme Court in 28 1 Richardson v. State, Case No. 81738,1 and the inmate locator of the Nevada Department of 2 Corrections.2 3 A. Prior Criminal Convictions 4 On April 12, 2005, Richardson was convicted in the Second Judicial District Court of the 5 State of Nevada of one count of felony trafficking in a schedule 1 controlled substance, Case No. 6 CR04-1557B.3 7 On August 3, 2010, Richardson was convicted in the Second Judicial District Court of the 8 State of Nevada of one count of felony possession of a controlled substance for the purpose of 9 sale, Case No. CR09-2489.4 10 On August 3, 2010, Richardson was convicted in the Second Judicial District Court of the 11 State of Nevada of one count of felony driving under the influence, Case No. CR09-2492.5 12 On August 3, 2010, Richardson was convicted in the Second Judicial District Court of the 13 State of Nevada of one count of felony conspiracy to commit robbery, Case No. CR10-0561.6 14 This is not an exhaustive list of Richardson's prior convictions, just a list of convictions 15 from the Second Judicial District Court. For the purposes of this order, those four convictions are 16 sufficient. 17 B. The Conviction at Issue in This Case 18 In the Second Judicial District Court of the State of Nevada, Case No. CR16-1169,7 19 Richardson agreed to plead guilty to one count of trafficking in a controlled substance. 20 Richardson agreed to be sentenced as a "small" habitual criminal under Nev. Rev. Stat. 21 § 207.010(1)(a) (2009), with imprisonment for a minimum term of 8 years a maximum term of 20 22 years. ECF No. 11 at 2. Richardson did not appeal. ECF No. 11 at 1. Richardson did not file a 23 post-conviction habeas corpus petition in the state district court. ECF No. 11 at 1. 24
25 1 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=59801. 2 https://ofdsearch.doc.nv.gov/form.php. 26 3 https://www.washoecourts.com/Query/CaseInformation/CR04-1557B. 4 https://www.washoecourts.com/Query/CaseInformation/CR09-2489. 27 5 https://www.washoecourts.com/Query/CaseInformation/CR09-2492. 6 https://www.washoecourts.com/Query/CaseInformation/CR10-0561. 28 7 https://www.washoecourts.com/Query/CaseInformation/CR16-1169. 1 Richardson did file a motion to correct or modify an illegal sentence. ECF No. 11 at 5. 2 The state district court denied the motion. First, the state district court noted that the motion was 3 a disguised post-conviction habeas corpus petition that raised issues beyond the scope of a motion 4 to correct or modify an illegal sentence. ECF No. 8 at 9 (citing Edwards v. State, 918 P.2d 321, 5 324-25 & n.2 (Nev. 1996)). Second, the state district court addressed Richardson's claim that the 6 judgment of conviction stated erroneously that he had been adjudicated as a habitual criminal in 7 an earlier case. The state district court noted that the record before the sentencing court had no 8 mention of prior adjudication as a habitual criminal. The state district court also noted that the 9 sentencing court understood that this case was the first time that Richardson was being 10 adjudicated as a habitual criminal. The state district court thus corrected the clerical error that 11 Richardson previously had been adjudicated as a habitual criminal by issuing an amended 12 judgment of conviction without the erroneous phrase. ECF No. 8 at 9. The amended judgment of 13 conviction was entered on August 28, 2020. Richardson appealed the decision. ECF No. 1-1 at 14 3-4. The Nevada Court of Appeals affirmed. Richardson v. State, Case No. 81738-COA (Nev. 15 App. Mar. 25, 2021).8 16 III. Discussion 17 A. Ground 1 Is Without Merit 18 In ground 1 of the amended petition, Richardson alleges that the guilty plea agreement had 19 a provision that if he failed to stay out of trouble after accepting the agreement, then either the 20 prosecution could withdraw from the agreement and proceed to trial on the original charges or the 21 prosecution could argue at sentencing for any appropriate sentence, including "large" habitual- 22 criminal treatment under Nev. Rev. Stat. § 207.010(1)(b) (2009).9 Richardson argues that the 23 plea agreement misrepresented his criminal history, leading the state district court into believing 24 that Richardson could be sentenced as a "large" habitual criminal. Richardson also argues that 25
8 26 http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=60842&csIID=60842&deLinkID=810635&onBase DocumentNumber=21-08555. 27 9 The potential "large" habitual-criminal sentences are life imprisonment without the possibility of parole, life imprisonment with eligibility for parole beginning after a minimum of 10 years, or 25 years' imprisonment with 28 eligibility for parole beginning after a minimum of 10 years. Nev. Rev. Stat. § 207.010(1)(b)(1), (2), (3) (2009). 1 statements of the prosecutor and the defense counsel prove that he was threatened into pleading 2 guilty. 3 Richardson is incorrect. His criminal history in the Second Judicial District Court, four 4 felony convictions, by itself was sufficient for "large" habitual-criminal treatment at the time. 5 Nev. Rev. Stat. § 207.010(1)(b) (2009). The court has reviewed the transcript of Richardson's 6 change-of-plea hearing. Richardson v. State, Case. No. 81738, Record on Appeal v. 3, pp. 315- 7 43.10 Richardson entered his plea voluntarily, knowingly, and intelligently. If there was any 8 "threat," it merely was a warning that he would be facing a much longer prison term if he went to 9 trial and was convicted than if he accepted the plea agreement. Candid advice like that is not a 10 threat, but a recognition of the unpleasant reality into which Richardson put himself. Ground 1 is 11 without merit. 12 Reasonable jurists would not find the court's conclusion to be debatable or wrong, and the 13 court will not issue a certificate of appealability for ground 1. 14 B. Ground 2 Is Without Merit 15 In ground 2, Richardson claims that the prosecution failed to provide the state district 16 court with his history of abuse of controlled substances starting when he was 13. Richardson 17 argues that this information would have shown the state district court that he needed drug 18 treatment, not a prison sentence. This claim lacks merit for multiple reasons. 19 First, reading ground 2 literally, Richardson's history of substance abuse is not 20 exculpatory information that was solely within the prosecution's possession, which the 21 prosecution then failed to disclose. See Brady v. Maryland, 373 U.S. 83 (1963). This 22 information is possibly evidence to mitigate his sentence, which Richardson himself knew and 23 which he could have presented to the state district court himself. 24 Second, the court construes ground 2 as a claim that defense counsel should have given 25 this information to the state district court. However, the state district court already knew about 26 Richardson's history of substance abuse. The same judge had presided over Richardson's 2005
27 10 http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=59801&csIID=59801&deLinkID=788125&onBase 28 DocumentNumber=20-35195. 1 || conviction for trafficking in a controlled substance, Case No. CR04-1557B. She warned 2 || Richardson to stop abusing and selling controlled substances. In his letter to the judge in this 3 || criminal case, Richardson regretted not taking her advice. Richardson v. State, Case. No. 81738, 4 || Record on Appeal v. 2, pp. 225-26.'! The judge's comments at Richardson's change-of-plea 5 || hearing and sentencing hearing show that she knew Richardson's history, and that she was 6 | disappointed in him. Id., v.3, pp. 338-41, 364-68.” 7 Third, the information of Richardson's history of substance abuse would not have affected 8 || the sentencing. The parties stipulated to a prison sentence with a minimum term of 8 years and a 9 | maximum term of 20 years. Id., v. 2, p. 205. Although discretion to impose the stipulated 10 | habitual-criminal sentence remained with the judge, Nev. Rev. Stat. § 207.010(2) (2009), this was 11 || the only sentence that she could have imposed if she agreed to adjudicate Richardson as a 12 | habitual criminal. Ground 2 is without merit. 13 Reasonable jurists would not find the court's conclusion to be debatable or wrong, and the 14 | court will not issue a certificate of appealability. 15 | IV. Conclusion 16 IT THEREFORE IS ORDERED that the amended petition for a writ of habeas corpus 17 || pursuant to 28 U.S.C. § 2254 (ECF No. 11) is DENIED. The clerk of the court is directed to 18 || enter judgment accordingly and to close this action. 19 IT FURTHER IS ORDERED that a certificate of appealability will not issue. 20 DATED: July 8, 2021
HOWARD D. MCKIBBEN 22 United States District Judge 23 24 1 |, 25 http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=59801 &csIID=59801 &deLinkID=788124&onBase DocumentNumber=20-35 194. 12 26 http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=59801 &csIID=59801 &deLinkID=788125&onBase DocumentNumber=20-35195. 27 | http://casemfo.nvsupremecourt.us/document/view.do?csNameID=59801 &csIID=59801&deLinkID=788124&onBase 28 DocumentNumber=20-35 194.