Yohey v. Russell

• Court: District Court, D. Nevada
• Decided: February 12, 2024
• Docket: 3:20-cv-00441
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 SLATER L. YOHEY, Case No. 3:20-cv-00441-ART-CLB

4 Petitioner, ORDER v. 5

6 NETHANJAH BREITENBACH,1 et al.,

7 Respondents.

8 9 Petitioner Slater L. Yohey filed a counseled second-amended petition for 10 writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 24.) This matter is before 11 this court for adjudication of the merits of that second-amended petition, which 12 alleges that (1) his counsel failed to investigate or present mitigating evidence at 13 sentencing, (2) his counsel failed to object during sentencing to the trial court’s 14 failure to consider the factors under Nev. Rev. Stat. § 193.165, (3) his counsel 15 failed to file a direct appeal, and (4) the trial court failed to consider the factors 16 under Nev. Rev. Stat. § 193.165. (Id.) For the reasons discussed below, this court 17 grants the petition on ground 3. 18 I. BACKGROUND2 19 On August 31, 2015, Yohey ran into a former friend at the Western Village 20 Inn & Casino in Reno, Nevada. (ECF No. 37-2 at 9.) The former friend and another 21 man invited Yohey back to an apartment. (Id.) After about 20 minutes of drinking 22 at the apartment, Yohey pulled out a gun,3 ordered his former friend to tie up the 23 1The state corrections department’s inmate locator page states that Yohey is 24 incarcerated at Lovelock Correctional Center. Nethanjah Breitenbach is the current warden for that facility. At the end of this order, this court directs the 25 clerk to substitute Nethanjah Breitenbach as a respondent for Respondent Perry Russell. See Fed. R. Civ. P. 25(d). 26 2This court makes no credibility findings or other factual findings regarding the 27 truth or falsity of the facts of this case. This court’s summary of the facts is merely a backdrop to its consideration of the issues presented in the case. 28 3The gun was “an airsoft, realistic-looking handgun.” (ECF No. 37-2 at 10.) 1 other man, robbed the men, tied up his former friend, stole a vehicle, evaded 2 police officers, wrecked the vehicle, and fled on foot before being apprehended. 3 (Id.) 4 On December 1, 2015, after Yohey waived his preliminary hearing at the 5 state justice court, the prosecution filed an information in the state district court, 6 charging Yohey with robbery with the use of a deadly weapon, robbery with the 7 use of a deadly weapon on a victim over the age of 60 years, first-degree 8 kidnapping, grand larceny of a motor vehicle, and eluding a police officer. (ECF 9 No. 17-2.) The following day, Yohey’s counsel filed a personal reference letter with 10 the state district court from Yohey’s pastor. (ECF No. 17-3.) On December 3, 11 2015, Yohey’s counsel requested a competency evaluation be conducted on 12 Yohey. (ECF No. 17-4.) The state district court granted the request. (ECF No. 17- 13 6.) Following Yohey’s competency evaluation, the state district court found Yohey 14 to be competent. (ECF No. 17-7.) Yohey entered into a plea agreement with the 15 prosecution which provided that Yohey would plead guilty to all the charges in 16 return for the prosecution recommending a definite term of 5-15 years on the 17 first-degree kidnapping charge and agreeing not to seek habitual criminal 18 treatment. (ECF No. 17-8.) Yohey was arraigned and pleaded guilty as provided 19 in the guilty plea agreement. (ECF No. 17-10.) 20 On June 9, 2016, the state district court entered a judgment of conviction, 21 sentencing Yohey as follows: (1) 48 to 180 months for the robbery conviction plus 22 a consecutive sentence of 12 to 48 months for the deadly weapon enhancement, 23 (2) 48 to 180 months for the second robbery conviction to be served consecutive 24 to count 1 plus a consecutive term of 12 to 48 months for the deadly weapon 25 enhancement, (3) 60 to 180 months for the first-degree kidnapping conviction to 26 be served consecutive to counts 1 and 2, (4) 18 to 60 months for the grand larceny 27 of a motor vehicle conviction to be served concurrently with count 3 and 28 consecutive to counts 1 and 2, and (5) 24 to 72 months for the eluding conviction 1 to be served concurrently with counts 3 and 4 and consecutive to counts 1 and 2 2. (ECF No. 17-12.) Yohey’s aggregate sentence is 180 to 636 months (or 15 to 53 3 years). (Id. at 4.) 4 Yohey filed a pro se direct appeal on July 22, 2016. (ECF No. 17-13.) 5 Yohey’s appeal was dismissed by the Nevada Supreme Court for being untimely. 6 (ECF No. 17-16.) Remittitur issued on October 7, 2016. (ECF No. 17-17.) 7 On November 8, 2016, Yohey filed a pro se state postconviction petition. 8 (ECF No. 17-21.) The state district court appointed counsel for Yohey. (ECF No. 9 17-23.) Thereafter, Yohey’s first appointed state postconviction counsel filed a 10 notice that no supplement would be filed. (ECF No. 17-24.) Yohey’s first appointed 11 state postconviction counsel then moved to withdraw as counsel. (ECF No. 17- 12 27.) The state district court granted the request and appointed new counsel. (ECF 13 Nos. 17-29, 17-30.) An evidentiary hearing was held on December 19, 2018. (ECF 14 No. 17-33.) The state district court denied Yohey postconviction relief on March 15 1, 2019. (ECF No. 17-34.) Yohey appealed, and the Nevada Supreme Court 16 affirmed on April 16, 2020. (ECF No. 17-41.) Remittitur issued on May 11, 2020. 17 (ECF No. 17-42.) 18 Yohey submitted his pro se federal petition for a writ of habeas corpus on 19 or about July 29, 2020. (ECF No. 1-1.) This court appointed counsel, and Yohey 20 filed a counseled first-amended petition and a counseled second-amended 21 petition. (ECF Nos. 6, 11, 16, 24.) Respondents moved to dismiss the second- 22 amended petition. (ECF No. 34.) Yohey moved to strike the motion to dismiss or, 23 in the alternative, moved for a more definite statement relating to Respondents’ 24 timeliness and relation back arguments. (ECF No. 40.) In their response to the 25 motion to strike, Respondents agreed to submit a renewed motion to dismiss. 26 (ECF No. 50.) This court granted the motion to strike. (ECF No. 52.) Respondents 27 filed a renewed motion to dismiss. (ECF No. 51.) This court granted Respondents’ 28 renewed motion, in part, finding (1) that ground 4 is procedurally defaulted and 1 (2) grounds 1 and 2 are technically exhausted but procedurally defaulted. (ECF 2 No. 64.) Respondents filed their answer to the second-amended petition on July 3 20, 2023, and Yohey filed his reply on November 3, 2023. (ECF Nos. 68, 71.) 4 II. GOVERNING STANDARD OF REVIEW 5 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable 6 in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 7 (“AEDPA”):

8 An application for a writ of habeas corpus on behalf of a person in 9 custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits 10 in State court proceedings unless the adjudication of the claim –

11 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 12 established Federal law, as determined by the Supreme 13 Court of the United States; or

14 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the 15 evidence presented in the State court proceeding. 16 17 A state court decision is contrary to clearly established Supreme Court 18 precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a 19 rule that contradicts the governing law set forth in [the Supreme Court’s] cases” 20 or “if the state court confronts a set of facts that are materially indistinguishable 21 from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 22 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000), and citing Bell 23 v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable 24 application of clearly established Supreme Court precedent within the meaning 25 of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing legal 26 principle from [the Supreme] Court’s decisions but unreasonably applies that 27 principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. 28 at 413). “The ‘unreasonable application’ clause requires the state court decision 1 to be more than incorrect or erroneous. The state court’s application of clearly 2 established law must be objectively unreasonable.” Id. (quoting Williams, 529 3 U.S. at 409–10) (internal citation omitted). 4 The Supreme Court has instructed that “[a] state court’s determination that 5 a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists 6 could disagree’ on the correctness of the state court’s decision.” Harrington v. 7 Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 8 664 (2004)). The Supreme Court has stated “that even a strong case for relief does 9 not mean the state court’s contrary conclusion was unreasonable.” Id. at 102 10 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 11 (2011) (describing the standard as a “difficult to meet” and “highly deferential 12 standard for evaluating state-court rulings, which demands that state-court 13 decisions be given the benefit of the doubt” (internal quotation marks and 14 citations omitted)). 15 III. DISCUSSION 16 A. Ground 1—counsel’s failure to present mitigation at sentencing 17 In ground 1, Yohey alleges that his counsel was ineffective due to his failure 18 to investigate or present mitigation at his sentencing in violation the Fifth, Sixth, 19 and Fourteenth Amendments. (ECF No. 24 at 5.) Specifically, Yohey argues that 20 his trial counsel failed to present the full picture to the state district court 21 regarding his addiction to drugs, including the following facts: Yohey started 22 using drugs when he was a young teenager; by the time he was a young adult, 23 Yohey was addicted to opioids; at age eighteen, Yohey was rushed to the 24 emergency room where he was treated for alcohol poisoning; after graduating 25 from high school, Yohey regularly used cocaine, opioids, and ecstasy; in the midst 26 of this serious drug problem, Yohey made several attempts to overcome his 27 addition and ultimately did succeed for a period of 2.5 years; Yohey relapsed 28 when he experienced a relationship loss; and by the time he was arrested, Yohey 1 had lost his job and had become homeless. (Id. at 6.) 2 1. Procedural default 3 This court previously determined that ground 1 was technically exhausted 4 because it would be procedurally barred in the state courts, and this court 5 deferred a decision on whether Yohey can demonstrate cause and prejudice 6 under Martinez v. Ryan, 566 U.S. 1 (2012) to overcome the procedural default. 7 (ECF No. 64 at 8–9.) Now that this issue is ripe for decision, the principal issues4 8 are: (1) whether Yohey’s ineffective-assistance-of-trial-counsel claim is 9 substantial; (2) if so, whether Yohey’s state postconviction counsel was ineffective 10 in raising this claim in the state court; and (3) if so, whether, on the merits, Yohey 11 was denied effective assistance of trial counsel. See, e.g., Atwood v. Ryan, 870 12 F.3d 1033, 1059–60 (9th Cir. 2017). On all such issues, this court’s review is de 13 novo. Id. at 1060 n.22. 14 2. Background information 15 At Yohey’s sentencing hearing, the state district court noted that it had 16 reviewed Yohey’s presentence investigation report, substance abuse evaluation 17 prepared by Janice Fung, Yohey’s court-ordered evaluation prepared by Dr. 18 Bissett, Yohey’s court-ordered evaluation prepared by Dr. Pearson, and a letter 19 from Pastor Mark Evans. (ECF No. 17-11 at 5.) Yohey’s trial counsel made the 20 following arguments on Yohey’s behalf: (1) a minimum sentence of only 11 years 21 would give Yohey incentive to do well when he is paroled given that he would 22 “have the high end that he’s going to have to deal with,” (2) a lower sentence than 23 that recommended by the division of parole and probation—15 to 53 years— 24

25 4It has not been disputed herein (1) that a state postconviction proceeding in the state court was an initial-review collateral proceeding for purposes of Martinez, 26 or (2) that Nevada procedural law sufficiently requires an inmate to present a 27 claim of ineffective assistance of trial counsel for the first time in that proceeding for purposes of applying the Martinez rule. See generally Rodney v. Filson, 916 28 F.3d 1254, 1259–60 (9th Cir. 2019). 1 would be appropriate given that Yohey “will be serving out a prison term that 2 effectively will be equivalent . . . to somebody taking the life of another human 3 being,” (3) Yohey has “take[n] responsibility for the crimes in this case” and was 4 remorseful, (4) “Yohey ha[d] a significant drug problem that he[ had] been 5 struggling with for years,” (5) Yohey “went to Bible college . . . [and] taught Bible 6 classes,” (6) Yohey’s “goal was to try and score some methamphetamine” the night 7 the crimes were committed, (7) Yohey thought one of the victims of the robbery 8 was a pedophile, (8) Yohey had been “doing an excellent job with working with 9 the kids” in “Kids Court,” and (9) “Yohey ha[d] been a trustee up at the jail and 10 been working with inmates who suffer from mental health issues.” (Id. at 8–16, 11 25.) Mr. Smith, Yohey’s pastor, then testified as a character reference on Yohey’s 12 behalf, and Yohey gave his allocution. (Id. at 16–19, 29–34.) 13 3. Standard for an effective assistance of counsel claim 14 In Strickland v. Washington, the Supreme Court propounded a two-prong 15 test for analysis of claims of ineffective assistance of counsel requiring the 16 petitioner to demonstrate (1) that the attorney’s “representation fell below an 17 objective standard of reasonableness,” and (2) that the attorney’s deficient 18 performance prejudiced the defendant such that “there is a reasonable 19 probability that, but for counsel’s unprofessional errors, the result of the 20 proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court 21 considering a claim of ineffective assistance of counsel must apply a “strong 22 presumption that counsel’s conduct falls within the wide range of reasonable 23 professional assistance.” Id. at 689. The petitioner’s burden is to show “that 24 counsel made errors so serious that counsel was not functioning as the ‘counsel’ 25 guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to 26 establish prejudice under Strickland, it is not enough for the habeas petitioner 27 “to show that the errors had some conceivable effect on the outcome of the 28 proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the 1 defendant of a fair trial, a trial whose result is reliable.” Id. at 687. 2 4. Analysis 3 Counsel’s performance at the penalty phase is measured against 4 “prevailing professional norms.” Strickland, 466 U.S. at 688. When challenging 5 counsel’s actions in failing to present mitigating evidence during a sentencing 6 hearing, the “principal concern . . . is not whether counsel should have presented 7 a mitigation case[, but instead] . . . whether the investigation supporting counsel’s 8 decision not to introduce mitigating evidence . . . was itself reasonable.” Wiggins 9 v. Smith, 539 U.S. 510, 522–23 (2003) (emphasis in original). “To perform 10 effectively . . . counsel must conduct sufficient investigation and engage in 11 sufficient preparation to be able to present and explain the significance of all the 12 available mitigating evidence.” Lambright v. Schriro, 490 F.3d 1103, 1116 (9th 13 Cir. 2007) (internal quotation marks and brackets omitted). 14 Yohey fails to demonstrate that his trial counsel failed to investigate and 15 present mitigating evidence. Wiggins, 539 U.S. at 522–23. To factually support 16 this ground, Yohey cites to Pastor Evans’ letter, Yohey’s presentence investigation 17 report, and Yohey’s substance abuse evaluation from Janice Fung.5 (ECF Nos. 24 18 at 6; 71 at 24–26.) Not only were these document—apart from the presentence 19 investigation report—acquired by Yohey’s trial counsel and provided to the state 20 district court, but the state district court specifically noted at the beginning of 21 Yohey’s sentencing hearing that he had reviewed these documents. (See ECF No. 22 17-11 at 5.) Accordingly, Yohey fails to demonstrate that his trial counsel failed 23 to investigate. And although Yohey’s trial counsel certainly could have made a 24 more strenuous argument regarding Yohey’s substance abuse issues, Yohey fails 25 5Yohey also cites to his medical records from Northern Nevada Medical Center, 26 which were obtained by the Federal Public Defender on or about February 1, 27 2021. (ECF No. 25-1.) However, this court is precluded from “consider[ing] evidence beyond the state-court record based on ineffective assistance of state 28 postconviction counsel.” Shinn v. Ramirez, 596 U.S. 366, 382 (2022). 1 to demonstrate prejudice given that his substance abuse was well known to the 2 state district court. In fact, Yohey spoke about his substance abuse issues during 3 his allocution, Yohey’s substance abuse evaluation and presentence investigation 4 report detailed Yohey’s substance abuse issues, and the state district court 5 acknowledged the role drugs played in Yohey’s crimes. (ECF Nos. 18-1; 17-11 at 6 31–33, 42–43; 37-1.) Consequently, because Yohey fails to show that his trial 7 counsel was ineffective regarding the presentation of mitigation evidence at 8 sentencing, his ineffective-assistance-of-counsel claim is not substantial. 9 Therefore, Yohey fails to demonstrate the requisite prejudice necessary to 10 overcome the procedural default of ground 1. Ground 1 is dismissed. 11 B. Ground 2—counsel’s failure to object at sentencing 12 In ground 2, Yohey alleges that his counsel was ineffective for failing to 13 object to the state district court’s failure to consider the factors under Nev. Rev. 14 Stat. § 193.165 on the record as required under Nevada law in violation of the 15 Fifth, Sixth, and Fourteenth Amendments. (ECF No. 24 at 7.) 16 1. Procedural default 17 Like ground 1, this court previously determined that ground 2 was 18 technically exhausted because it would be procedurally barred in the state 19 courts, and this court deferred a decision on whether Yohey can demonstrate 20 cause and prejudice under Martinez to overcome the procedural default. (ECF No. 21 64 at 8–9.) Now that this issue is ripe for decision, the principal issues, which 22 this court reviews de novo, are: (1) whether Yohey’s ineffective-assistance-of-trial- 23 counsel claim is substantial; (2) if so, whether Yohey’s state postconviction 24 counsel was ineffective in raising this claim in the state court; and (3) if so, 25 whether, on the merits, Yohey was denied effective assistance of trial counsel. 26 2. Nevada law 27 Nevada law provides that a state district court “shall consider the following” 28 factors “[i]n determining the length of the additional penalty imposed” for the 1 deadly weapon enhancement: “(a) [t]he facts and circumstances of the crime; (b) 2 [t]he criminal history of the person; (c) [t]he impact of the crime on any victim; (d) 3 [a]ny mitigating factors presented by the person; and (e) [a]ny other relevant 4 information.” Nev. Rev. Stat. § 193.165(1). The statute also provides that “[t]he 5 court shall state on the record that it has considered the information described 6 in paragraphs (a) to (e), inclusive, in determining the length of the additional 7 penalty imposed.” Id. The Nevada Supreme Court has “direct[ed] the district 8 courts to make findings regarding each factor enumerated in NRS 9 193.165(1) . . . when imposing a sentence for a deadly weapon enhancement.” 10 Mendoza-Lobos v. State, 125 Nev. 634, 642, 218 P.3d 501, 506 (2009). 11 3. Background information 12 At Yohey’s sentencing hearing, the state district court stated the following:

13 [I]t is the order and judgment of the Court that the weapon enhancement [for count 1] will be an indeterminate period not to 14 exceed 48 months, with a minimum parole eligibility of 12 months. The Court has considered the factors described in NRS 193.165 in 15 coming to the conclusion as to the weapons enhancement. . . . . 16 Further, it is the order and judgment of the Court regarding the weapons enhancement [for count 2] that the defendant receive a 17 consecutive sentence of not-to-exceed 48 months, with a minimum parole eligibility of 12 months. And again, regarding Count 2, the 18 Court has taken into consideration the facts described in NRS 193.165. 19 20 (ECF No. 17-11 at 47.) 21 Later, during Yohey’s postconviction evidentiary hearing, the state district 22 court judge stated, “as the sentencing judge I can tell you I did significantly 23 consider [the factors under Nev. Rev. Stat. § 193.165], because I gave the 24 defendant almost the lowest sentence allowed by law as far as the weapon 25 enhancement.” (ECF No. 17-33 at 70.) 26 4. Analysis 27 Yohey is correct that the state district court did not strictly abide by the 28 requirements of Nev. Rev. Stat. § 193.165(1) by discussing each factor. Thus, it 1 would have been prudent for Yohey’s trial counsel to have objected to the state 2 district court’s failure to abide by the requirements of Nev. Rev. Stat. § 3 193.165(1). However, Yohey fails to demonstrate prejudice. 4 Yohey’s contention that there is a reasonable probability that the state 5 district court would have imposed a lesser sentence had his trial counsel objected 6 to the state district court’s error is mere speculation. See Djerf v. Ryan, 931 F.3d 7 870, 881 (9th Cir. 2019) (“Strickland prejudice is not established by mere 8 speculation.”). Indeed, the state district court stated at the sentencing hearing 9 that it had considered the factors, and the state district court stated at the 10 postconviction evidentiary hearing that it “significantly consider[ed]” the factors. 11 (ECF Nos. 17-11 at 47; 17-33 at 70.) As such, had Yohey’s trial counsel lodged 12 an objection, the state district court may have specifically discussed each factor 13 on the record. However, it is mere conjecture that this formulaic discussion of 14 the factors would have altered the state district court’s sentencing decision in 15 light of its prior—although unrecorded—consideration of the same factors and its 16 minimal sentencing on the deadly-weapon enhancements.6 See Mendoza-Lobos, 17 218 P.3d at 508 (finding that even though “the district court failed to articulate 18 findings regarding each of the enumerated factors for each deadly weapon 19 enhancement[,] . . . nothing in the record indicates that the district court’s failure 20 to make certain findings on the record had any bearing on the district court’s 21 sentencing decision,” so “the district court’s omission did not cause any prejudice 22 or a miscarriage of justice”). Accordingly, because Yohey fails to show prejudice 23 regarding his trial counsel’s lack of an objection, his ineffective-assistance-of- 24 counsel claim is not substantial. Because Yohey fails to demonstrate the requisite 25 6Under Nevada law, the state district court could have imposed lesser sentences 26 of 12 to 30 months on each deadly weapon enhancement—as opposed to the 12 27 to 48 months sentences that were imposed. However, the state district court also could have sentenced Yohey to a maximum term of 15 years for each deadly 28 weapon enhancement. 1 prejudice necessary to overcome the procedural default of ground 2, ground 2 is 2 dismissed. 3 C. Ground 3—counsel’s failure to file a direct appeal 4 In ground 3, Yohey alleges that his counsel was ineffective for failing to file 5 a direct appeal on his behalf in violation of the Fifth, Sixth, and Fourteenth 6 Amendments. (ECF No. 24 at 10.) Yohey explains that he had a non-frivolous 7 claim on direct appeal: the state district court erred when it did not consider all 8 the factors on the record under the deadly weapon enhancement statute. (Id. at 9 10.) 10 1. Background information 11 At his postconviction evidentiary hearing, Yohey testified “after [he] was 12 sentenced[, he] asked [his trial counsel if he could] even appeal this, because in 13 [his] eyes it was a severe amount of time [he] was just sentenced to.” (ECF No. 14 17-33 at 96.) According to Yohey, his trial counsel responded by explaining that 15 Yohey had waived his right to appeal by pleading guilty. (Id.) Contrarily, Yohey’s 16 trial counsel testified, inter alia, to the following: (1) he did not “recall Mr. Yohey 17 telling [him] directly at the conclusion of his sentencing that he wanted to appeal,” 18 (2) if Yohey had requested that an appeal be filed, he would have “draft[ed] a one 19 paragraph memorandum listing . . . any possible legal issues that [the public 20 defender’s appellate deputy] could address,” and (3) he never “indicate[d] to Mr. 21 Yohey that he did not have a right to appeal because he had entered a guilty 22 plea.” (Id. at 24–25, 34–35.) 23 Yohey wrote a letter to the public defender’s office after his sentencing 24 hearing. (ECF No. 17-31 at 7.) The letter is illegible now. (Id. at 6.) The public 25 defender’s appellate deputy reviewed the record and wrote an email to Yohey’s 26 trial counsel, explaining that (1) “Yohey writes that he was surprised at the 27 sentences” he received, (2) he had “reviewed the district court records,” and (3) 28 asked whether the state district court judge “rel[ied] on anything in fashioning 1 his sentences that would constitute an abuse of discretion” or whether he 2 “believe[d] any issues exist[ed] for appeal.” (Id. at 9.) Yohey’s trial counsel 3 responded, “I do not believe there are any issues that exist for the purpose of an 4 appeal.” (Id.) Yohey’s trial counsel also stated that Yohey “did not request, from 5 [him], an appeal.” (Id.) The public defender’s appellate deputy wrote Yohey a letter 6 on July 6, 2016, explaining (1) that the “letter [was] in response to [his] recent 7 letter asking [him] to look at [Yohey’s] case for possible appeal,” (2) “the sentences 8 [Yohey received were] within the range of the applicable penalty provisions,” (3) 9 the minutes from the sentencing hearing “reflect that the district court judge did 10 not abuse his sentencing discretion,” and (4) “there are no issues here for appeal.” 11 (Id. at 4.) 12 The public defender’s appellate deputy testified, inter alia, to the following 13 at Yohey’s postconviction evidentiary hearing regarding Yohey’s letter: (1) he 14 received correspondence from Yohey on July 5, 2016, before Yohey’s 30-day 15 appeal window had closed, (2) Yohey’s letter asked him “to take a look at [the] 16 case for possible appeal,” (3) he emailed Yohey’s trial counsel “for some 17 information from him,” (4) Yohey’s trial counsel responded “that he did not believe 18 that there were any issues for purposes of appeal” and “that his client had not 19 asked for an appeal,” (5) if someone does not specifically ask for an appeal to be 20 filed, he looks into the record of the case “[and] depending on the information 21 that [he has] or find[s] out, [he] will either initiate an appeal or not,” (6) if someone 22 says they want an appeal, he would file an appeal, (7) Yohey’s letter “wasn’t a 23 demand for an appeal,” and (8) he “would not file a notice of appeal solely to be 24 able to extend time to do some kind of exploration.” (ECF No. 17-33 at 41, 44, 25 45, 46, 47, 49, 52, 53.) And regarding whether the state district court’s alleged 26 failures under Nev. Rev. Stat. § 193.165(1), the public defender’s appellate deputy 27 testified, inter alia, to the following: (1) “if you have an enhancement that’s in the 28 small range of possibilities, then that tells me that the district court judge actually 1 exercised some discretion,” (2) if he had raised a discretion issue on appeal, the 2 prosecution would have “respond[ed] by saying, ‘[t]he Court could not have 3 exercised any more discretion,’” (3) he would not have raised the weapon 4 enhancement issue here because “the sentence [was] within the small part of the 5 sentencing range, so . . . there would [not] be any error there,” especially since 6 there was no objection by Yohey’s trial counsel, meaning the issue would only be 7 reviewed for plain error, and (4) if all the factors are considered during 8 sentencing—albeit not at one time and in connection with Nev. Rev. Stat. § 9 193.165(1) directly—even if counsel had objected and preserved the issue for 10 appeal, the issue is not likely to succeed on appeal, especially in this case with 11 “the actual underlying enhancement sentence that was imposed.” (Id. at 61, 62, 12 63, 66, 73.) 13 2. State court determination 14 In affirming the state district court’s denial of Yohey’s state postconviction 15 petition, the Nevada Supreme Court held as follows:

16 Appellant argues the district court erred in denying his claim that counsel were ineffective for failing to file a direct appeal on his 17 behalf. Trial counsel has a duty to file a notice of appeal in two instances: when asked to do so or when the client expresses a desire 18 to challenge the conviction or sentence. Toston v. State, 127 Nev. 971, 978–80, 276 P.3d 795, 800–01 (2011). The latter may be “reasonably 19 inferred from the totality of the circumstances, focusing on the information that counsel knew or should have known at the time.” 20 Id. at 979, 276 P.3d at 801. It is a defendant’s burden to inform counsel that he wants to appeal. Id. If trial counsel had a duty to file 21 an appeal but failed to do so, prejudice is presumed. Id. at 976, 276 P.3d at 799. 22 At the evidentiary hearing, appellant testified that he asked trial counsel, Mr. Christopher Fortier, to file an appeal immediately 23 after sentencing but was told that he could not appeal because he had entered a guilty plea. Mr. Fortier testified that he was not asked 24 to file an appeal, he never told appellant that he could not appeal, and that if he had been asked to file an appeal he would have done 25 so. Appellant further testified that he sent a follow-up letter to the appellate deputy of the Washoe County Public Defender’s Office, Mr. 26 John Petty. An illegible copy of the letter was presented in evidence, and appellant did not testify about the letter’s content. Mr. Petty 27 testified that he understood the letter as inquiring about the possibility of an appeal but not asking for an appeal. Consequently, 28 he wrote a responsive letter explaining the lack of meritorious issues 1 testified that he would have filed an appeal if he believed appellant had asked for one in the letter. 2 The district court denied the claim, finding that appellant had not unequivocally asked either attorney to file an appeal. The district 3 court further found Mr. Fortier’s and Mr. Petty’s testimony “wholly credible and supported by the evidence.” Substantial evidence in the 4 record supports those findings. At the most, the evidence indicates that appellant inquired about the possibility of an appeal, but his 5 inquiry fell short of a request or an unequivocal desire for counsel to file an appeal. Thus, counsel were not deficient in failing to file an 6 appeal on his behalf. The district court therefore did not err in denying this claim. 7 8 (ECF No. 17-41 at 2–3.) 9 3. Standard for ineffective claims regarding filing an appeal 10 The Strickland “test applies to claims . . . that counsel was constitutionally 11 ineffective for failing to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 12 477 (2000). “[W]here the defendant neither instructs counsel to file an appeal nor 13 asks that an appeal not be taken, . . . the question whether counsel has performed 14 deficiently by not filing a notice of appeal is best answered by first asking . . . 15 whether counsel in fact consulted with the defendant about an appeal.” Id. at 16 478. “Consult” means “advising the defendant about the advantages and 17 disadvantages of taking an appeal, and making a reasonable effort to discover the 18 defendant’s wishes.” Id. “If counsel has not consulted with the defendant, the 19 court must in turn ask a second, and subsidiary, question: whether counsel’s 20 failure to consult with the defendant itself constitutes deficient performance.” Id. 21 “[C]ounsel has a constitutionally imposed duty to consult with the defendant 22 about an appeal when there is reason to think either (1) that a rational defendant 23 would want to appeal (for example, because there are nonfrivolous grounds for 24 appeal), or (2) that this particular defendant reasonably demonstrated to counsel 25 that he was interested in appealing.” Id. at 480. In order “to show prejudice [from 26 a lack of consultation regarding a notice of appeal], a defendant must 27 demonstrate that there is a reasonable probability that, but for counsel’s deficient 28 failure to consult with him about an appeal, he would have timely appealed.” Id. 1 at 484. 2 4. Do novo review 3 Yohey argues that this court should review ground 3 de novo because the 4 Nevada Supreme Court applied a standard that is contrary to Flores-Ortega when 5 it stated that “[i]t is a defendant’s burden to inform counsel that he wants to 6 appeal.” (ECF No. 71 at 18.) Yohey elaborates that the Nevada Supreme Court 7 did not even acknowledge counsel’s duty to consult with a client about an appeal. 8 (Id. at 19.) This court agrees. Under Flores-Ortega, there is a three-step process 9 that must be followed when a defendant neither instructs his or her counsel to 10 file an appeal nor asks that an appeal not be taken, which is the situation present 11 here. First, it must be considered whether counsel consulted with the defendant 12 about an appeal. Second, if counsel did not consult, it must be considered 13 whether counsel had a duty to consult. And third, if counsel failed to fulfill his or 14 her duty to consult, it must be considered whether the defendant would have 15 timely appealed but for his or her counsel’s deficiency. The Nevada Supreme 16 Court’s analysis merely determined that Yohey did not sufficiently ask his trial 17 counsel to file an appeal. However, the Nevada Supreme Court failed to apply the 18 three-step process under Flores-Ortega regarding consultation. Consequently, 19 because the Nevada Supreme Court applied a standard contrary to Flores-Ortega, 20 this court does not defer to the Nevada Supreme Court’s decision. 21 5. Analysis 22 Yohey’s trial counsel testified that Yohey did not instruct him to file a notice 23 of appeal, and the public defender’s appellate deputy testified that Yohey’s letter 24 only asked him to look into his case for a possible appeal. These testimonies 25 demonstrate that Yohey did not unequivocally request that his counsel file a 26 notice of appeal. As such, under Flores-Ortega, the first question to be answered 27 in this situation—a situation in which Yohey neither definitively instructed 28 counsel to file an appeal nor asked that an appeal not be taken—is whether 1 Yohey’s trial counsel consulted with him about an appeal. There is no evidence 2 in the record that such a consultation took place. The second question to be 3 answered is whether Yohey’s trial counsel had a duty to consult because either 4 (1) a rational defendant would want to appeal or (2) Yohey reasonably 5 demonstrated that he was interested in appealing. Although a rational defendant 6 in Yohey’s position may not have wanted to appeal given the lack of meritorious 7 grounds for appellate relief, given the circumstances following Yohey’s 8 sentencing, a reasonable attorney would have been put on notice of the duty to 9 consult with Yohey about the benefits and drawbacks of filing a notice of appeal. 10 Indeed, before his window for filing a notice of appeal had closed, he drafted and 11 mailed a three-paragraph letter to the public defender’s office, asking for someone 12 to look at his case for a possible appeal. This letter—the contents of which were 13 emailed to Yohey’s trial counsel—sufficiently demonstrates Yohey’s interest in an 14 appeal, triggering his trial counsel’s duty to consult with him. Yohey’s trial 15 counsel’s failure to consult in this situation constitutes deficient performance. 16 The third question to be answered is whether Yohey demonstrates that there is a 17 reasonable probability that, but for his counsel’s deficient failure to consult with 18 him about an appeal, he would have timely appealed. Yohey filed a pro se notice 19 of appeal on July 22, 2016, which was 12 days after his 30-day deadline expired. 20 Given that Yohey inquired about filing an appeal before his 30-day deadline 21 expired and filed a pro se notice of appeal upon receiving the public defender’s 22 appellate deputy’s response letter, Yohey demonstrates a reasonable probability 23 that he would have filed a timely appeal had his counsel not failed to consult with 24 him. Yohey is granted relief on ground 3. 25 D. Ground 4—trial court’s failures under Nev. Rev. Stat. § 193.165 26 In ground 4, Yohey alleges that his due process rights under the Fifth and 27 Fourteenth Amendments were violated when the state district court failed to 28 consider the factors under Nev. Rev. Stat. § 193.165 on the record as required 1 under Nevada law. (ECF No. 24 at 12.) 2 This court previously found ground 4 to be procedurally defaulted. (ECF 3 No. 64 at 3.) Yohey argued that he could overcome the default due to his counsel’s 4 failure to file a notice of appeal. (Id.) This court deferred a decision on whether 5 the ineffective assistance alleged in ground 3 constitutes cause to overcome the 6 procedural default of ground 4. (Id. at 6.) Because this court has concluded that 7 Yohey’s counsel was ineffective in ground 3, ground 3 constitutes cause to 8 overcome the procedural default of ground 4. However, Yohey fails to demonstrate 9 that the state district court’s errors under Nev. Rev. Stat. § 193.165 warrant the 10 granting of federal habeas relief. Rather, the state district court’s failure here is 11 simply an error of state law, and Yohey fails to demonstrate that the error arises 12 to an independent due process violation. See Holley v. Yarborough, 568 F.3d 13 1091, 1101 (9th Cir. 2009) (explaining that “[s]imple errors of state law do not 14 warrant federal habeas relief”); Jammal v. Van de Kamp, 926 F.2d 918, 919–20 15 (9th Cir. 1991) (“[T]he presence or absence of a state law violation is largely beside 16 the point.”). Yohey is denied federal habeas relief for ground 4. 17 IV. CONCLUSION7 18 It is therefore ordered that the second-amended petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254 (ECF No. 24) is granted as to ground 3. 20 Within 30 days8 of the later of (1) the conclusion of any proceedings seeking 21 appellate or certiorari review of this court’s judgment, if affirmed, or (2) the 22 expiration for seeking such appeal or review, the Second Judicial District Court 23 for the State of Nevada shall either release Petitioner Slater L. Yohey from state 24 custody or to allow him, within a reasonable time, to perfect a direct appeal. 25 It is further ordered that, to the extent necessary, a certificate of

26 7Yohey requests that this court conduct an evidentiary hearing. (ECF No. 24 at 27 15.) This court declines to do so because it is able to decide the petition on the pleadings. 28 8Reasonable requests for modification of this time may be made by either party. 1 || appealability is denied for grounds 1, 2, and 4. 2 It is further ordered that the Clerk of the Court (1) substitute Nethanjah 3 || Breitenbach for Respondent Perry Russell, (2) enter judgment accordingly, (3) 4 || provide a copy of this order and the judgment to the Clerk of the Second Judicial 5 || District Court for the State of Nevada in connection with that court’s case number 6 || CR15-1779, and (4) close this case. 7 8 9 DATED THIS 12th day of February 2024. 10 11 en Apes Hawied

13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28