Opinion
2:04-cv-00950-RCJ-GWF.
February 7, 2007
ORDER
This habeas matter under 28 U.S.C. § 2254 comes before the Court for decision on the merits. Petitioner Forrest Scott Harman seeks to set aside his 2001 Nevada state court conviction, pursuant to a guilty plea, for possession of a controlled substance, to wit, methamphetamine, and his adjudication and sentencing as a habitual criminal.
Governing Standard of Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 333 n. 7,117 S.Ct. 2059, 2066 n. 7,138 L.Ed.2d 481 (1997). Under this deferential standard of review, a federal court may not grant habeas relief merely on the basis that a state court decision was incorrect or erroneous. E.g., Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Instead, under 28 U.S.C. § 2254(d), the federal court may grant habeas relief only if the decision: (1) was either contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. E.g., Mitchell v. Esparza, 124 S.Ct. 7, 10 (2003).
A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell, 124 S.Ct. at 10. A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." Mitchell, 124 S.Ct. at 11. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.
A state district court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 124 S.Ct. at 12; Davis v. Woodford, 333 F.3d 982, 990 (9th Cir. 2003).
To the extent that the state court's factual findings are challenged intrinsically based upon evidence in the state court record, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, the AEDPA requires substantially more deference:
. . . . [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972. If the state court factual findings withstand intrinsic review under this deferential standard, they then are clothed in a presumption of correctness under 28 U.S.C. § 2254(e)(1); and they may be overturned based on new evidence offered for the first time in federal court, if other procedural prerequisites are met, only on clear and convincing proof. 393 F.3d at 972.
The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Davis, 333 F.3d at 991.
Discussion
Ground 1: Alleged Failure to Exercise Discretion in Habitual Criminal Adjudication
In Ground 1, petitioner contends that he was denied due process in violation of the Fourteenth Amendment because the state district court allegedly failed to exercise discretion when it adjudicated him a habitual criminal.
Both in the Supreme Court of Nevada and in this Court, Harman premises this claim on the following statement by the state district court:
All right. The statements of your counsel are meaningful. However, I think that they are addressed to the wrong branch of government.
As a court, what I have to do is follow the law. In the areas that I do have discretion, that's one thing.
But in the areas that I have to follow the law, that's a totally different thing.June 12, 2001, Sentencing Transcript, at 16 (#7, Ex. 2).
Harman contends that the above-quoted statement demonstrates that the state district court made the habitual criminal adjudication under an erroneous assumption that the existence of the three prior felony convictions mandated a habitual criminal finding. He urges:
. . . . This erroneous assumption controlled the district court's judgment from its expression [petitioner quotes from the above-quoted passage] . . . through the pronouncement of said judgment. . . . .
The state district court did not understand its legal authority. The pronounced judgment did not indicate that the district court had discovered the error of its earlier expression. Said judgment was controlled by the erroneous assumption, that, the State proved the prior felony convictions, therefore, the judge must, and did, adjudicate Mr. Harman a "habitual criminal."Traverse (#8), at 4-5.
The sentencing transcript establishes, however, that the above-quoted statement was made by the state district court well after the court made its finding that petitioner should be adjudicated a habitual criminal. The district court made the statement after the court heard argument regarding the appropriate sentence to be imposed in light of the habitual criminal adjudication that already had been made by the court. The district court made the statement in response to an argument by Harman's counsel regarding the appropriate sentence, not the habitual criminal adjudication.
The sentencing transcript reflects, in particular, the following.
The State sought to introduce four prior convictions, although a minimum of only three convictions was required. The prosecutor stated that he was offering four "so I can argue that and other factors involved with it." The state district court admitted only three of the convictions, which were burglary convictions from 1984, 1987 and 1989.
June 12, 2001, Sentencing Transcript, at 7-8 (#7, Ex. 2).
In its argument, the State pointed out that Harman had been adjudged a habitual criminal on his last burglary conviction and had been sentenced to twelve years. Less than a year after expiring this sentence, he had committed the drug offense that was the subject of the plea. The State maintained that the short time between his release and his return to criminal activity warranted a habitual criminal finding. At no point in its argument did the State suggest that Harman should be automatically adjudged a habitual criminal simply because there were three prior felony convictions.
Id., at 7-9.
Defense counsel argued that while "obviously Mr. Harman, he meets the statutory requirement for habitual criminality," the Court should not adjudicate him as a habitual criminal. Counsel contended that Harman's criminal behavior had de-escalated from the prior property crimes to an otherwise victimless drug possession offense where Harman was the only victim. Counsel maintained that Harman was a habitual addict rather than a habitual criminal, as his alleged addiction to alcohol, methamphetamine, and marijuana reflected essentially self-destructive behavior rather than habitual criminality.
June 12, 2001, Sentencing Transcript, at 9-10.
The State responded that, while Harman had pled to simple possession, he had been charged with possession with intent to sell. The offense report indicated that Harman was found not only with the methamphetamine in a marked baggie, but also with fifty other baggies carrying the same emblem, a vitamin bottle, and associated tools. The State argued that Harman "may have changed his trade, but he is continuing to commit crime" after being released from prison only eleven months before. The State maintained that Harman was continuing his criminal activities and that "[e]nough was enough." At no point in its reply did the State argue that Harman should be automatically adjudged a habitual criminal simply because there were three prior felony convictions.
Id., at 10-12.
The state district court, after hearing the foregoing extensive argument regarding the particulars of Harman's current offense and prior criminal history, found as follows:
All right. With the evidence presented to the court and the court looking at the prior record of Mr. Harman, the Court finds that the State has carried its burden of proof in this matter and the court finds good reason to concjude and find that Mr. Harman is to be — or is found to be a habitual criminal as defined in NRS 207.010.June 12, 2001, Sentencing Transcript, at 12.
The state judge then said: "Now for punishment." Both counsel then gave extensive argument regarding the appropriate sentence to be imposed following upon the habitual criminal adjudication that the district court had made. In the course of this argument, defense counsel urged that a life sentence for a possession offense was not appropriate, despite its current classification by the legislature as a Class A felony, because the Nevada legislature had been reducing the offense level for drug offenses. Counsel posited that "eventually we will see that these cases will become citations and we will see an expansion of drug court because people who involve themselves with drugs like Mr. Harman essentially take up the space in prison that should be occupied by violent offenders."
June 12, 2001, Sentencing Transcript, at 12-15.
At the conclusion of the sentencing argument, the state district court formally adjudged Harman guilty of felony offense possession of a controlled substance and a habitual criminal; and the court gave Harman an opportunity to personally address the court prior to imposition of sentence. Harman's comments hearkened back to his lawyer's arguments. The district judge then made the statements relied upon by petitioner herein. In context, these statements included the following:
All right. The statements of your counsel are meaningful. However, I think that they are addressed to the wrong branch of government.
As a court, what I have to do is follow the law. In the areas that I do have discretion, that's one thing.
But in the areas that I have to follow the law, that's a totally different thing.
. . . .
. . . . And, as I said, I have to follow the law. And the law dictates that the punishment provided — this is a Class A felony-is life without the possibility of parole, life with the possibility of parole beginning with a minimum of ten years or life — excuse me, a definite term of twenty-five years, eligibility after ten years are served.June 12, 2001, Sentencing Transcript, at 16-17. The court thereupon sentenced Harman to life with the possibility of parole after ten years, less than the maximum possible sentence available. Id.
Accordingly, in context, the comments relied upon by petitioner were directed to defense counsel's arguments regarding the appropriate sentence, not to the factors governing the habitual criminal adjudication, which already had been made.
On direct appeal, the Supreme Court of Nevada held as follows with regard to Harman's claim that the state district court did not exercise its discretion:
. . . Harman contends that the district court failed to exercise discretion in adjudicating him as a habitual criminal at sentencing. Harman argues that the district court failed to expressly weigh the nature and gravity of the prior convictions and adjudicated him based solely on the existence of the prior convictions without exercising its discretion. Harman contends that the quickness with which the district court adjudicated him as a habitual criminal warrants a new sentencing hearing. We disagree.
The district court has broad discretion to dismiss a habitual criminal allegation.[FN1] Accordingly, the decision to adjudicate an individual as a habitual criminal is not an automatic one.[FN2] The district court "may dismiss a habitual criminal allegation when the prior convictions are stale or trivial or in other circumstances where a habitual criminal adjudication would not serve the purpose of the statute or the interests of justice."[FN3]
This court recently explained that "Nevada law requires a sentencing court to exercise its discretion and weigh the appropriate factors for and against the habitual criminal statute before adjudicating a person as a habitual criminal."[FN4] Although it is easier for this court to determine whether the sentencing court exercised its discretion where the sentencing court makes particularized findings and specifically addresses the nature and gravity of the prior convictions, this court has never required such explicit findings.[FN5] Instead, we will look to the record as a whole to determine whether the district court exercised its discretion or was under a misconception that habitual criminal adjudication is automatic upon proof of the prior convictions.[FN6]
In this case, the district court heard argument regarding Harman's prior convictions, his criminal history in general, and the nature of the instant offense. After hearing the arguments of counsel, the district court judge stated:
All right. With the evidence presented to the court and the court looking at the prior record of Mr. Harman, the Court finds that the State has carried its burden of proof in this matter and the court finds good reason to conclude and find that Mr. Harman is to be — or is found to be a habitual criminal as defined in NRS 207.010.
Although the district court did not specifically address the nature and gravity of the prior convictions before adjudicating Harman as a habitual criminal, we conclude that the record as a whole indicates that the district court understood its sentencing authority and exercised its discretion in deciding to adjudicate Harman as a habitual criminal.
[FN1] See NRS 207.010(2).
[FN2] Clark v. State, 109 Nev. 426,851 P.2d 426, 427 (1993).
[FN3] Hughes v. State, 116 Nev. 327,331,996 P.2d 890, 892 (2000).
[FN4] Id., at 333,996 P.2d at 893.
[FN5] Id.
[FN6] Id., at 333,996 P.2d at 893-94.March 7, 2002, Order of Affirmance, at 1-3 (#7, Ex. 5).
The Nevada Supreme Court's rejection of this claim was neither contrary to nor an unreasonable application of clearly established law as determined by the United States Supreme Court.
Harman's argument on direct appeal was directed in the main to a claimed violation of state law based upon the district court's alleged failure to exercise its discretion. Harm an did refer in the argum ent, however, to the due process discussion in the Ninth Circuit's Walker decision, which is cited and discussed further below in the text. Respondents have not challenged exhaustion of the federal due process claim, likely due to Harman's discussion of Walker on direct appeal. The Nevada Supreme Court did not explicitly discuss a federal due process claim or federal authorities. It is established law, however, that the state high court need not discuss, or even be aware of, the applicable federal precedents to receive AEDPA deference, so long as neither the reasoning nor the result of the state court decision contradicts clearly established federal law. This Court accordingly reviews the Nevada Supreme Court's implicit rejection of the parallel federal due process claim under the governing AEDPA standard.
The Supreme Court's decision in Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980), establishes that state laws guaranteeing a defendant procedural rights at sentencing may create a liberty interest protected against arbitrary deprivation by the due process clause of the Fourteenth Amendment. Thus, when a state has provided a specific method for determining whether a certain sentence shall be imposed, "`it is not correct to say that the defendant's interest' in having that method adhered to `is merely a matter of state procedural law.'" Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) (citing Hicks).
In the present case, Harman relies upon the Ninth Circuit's pre-AEDPA application of Hicks to a Nevada habitual criminal adjudication in Walker v. Deeds, 50 F.3d 670 (9th Cir. 1995). In Walker, the Ninth Circuit sought to construe the Nevada Supreme Court's Clark decision, which is cited above in the state high court's decision in this case on Harman's direct appeal. The Walker panel construed Clark as requiring Nevada state district courts to make particularized findings expressly weighing the appropriate factors for and against habitual criminal enhancement and expressly determining whether it was "just and proper" to adjudge the defendant a habitual criminal based on the nature and gravity of the prior convictions. Because such express findings and determinations were absent in Walker, the Ninth Circuit held that the petitioner in that case had been denied due process under Hicks due to the state district court's failure to follow state law sentencing procedure. 50 F.3d at 672-73.
Harman's reliance on Walker in this case is misplaced for two fundamental reasons.
First, the Supreme Court of Nevada rejected Walker's reading of Clark as to the requirements of Nevada state law in Hughes v. State, which also was cited and relied upon by the state high court in Harman's case. As the Nevada Supreme Court made clear in Hughes, contrary to the Ninth Circuit decision in Walker, Nevada state law does not require sentencing courts to make express and particularized findings, inter alia, that it is just and proper to adjudicate a defendant as a habitual criminal. 116 Nev. at 331,996 P.2d at 892. Nevada state law requires only that the "sentencing court . . . exercise its discretion and weigh the appropriate factors for and against the habitual criminal statute before adjudicating a person as a habitual criminal." Id. Explicit particularized findings are not required. Id.
The Supreme Court of Nevada is the final arbiter of Nevada state law. The state high court's rejection of a prior Ninth Circuit reading of Nevada state law is binding on both this Court and the Ninth Circuit. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480,116 L.Ed.2d 385 (1991) ("it is not the province of a federal habeas court to reexamine state court determinations on state law questions"); Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) ( en banc) (an intervening decision on controlling state law by a state court of last resort overrules clearly irreconcilable prior circuit precedent). The Nevada Supreme Court's holding in this case that the state district court's findings complied with Nevada state procedural law is binding on federal habeas review and wholly undercuts Harman's due process claim. Without a state law violation, there is no federal due process claim.
Second, the Nevada Supreme Court's factual determination based upon the record also wholly undercuts Harman's claim. The state high court found that the record as a whole indicated that the district court understood its sentencing authority and exercised its discretion in deciding to adjudicate Harman as a habitual criminal. The rule of deferential review of state court factual findings applies to factual findings by state appellate courts as fully as it does to findings by state trial courts. See, e.g., Little v. Crawford, 449 F.3d 1075, 1077 n. 1 (9th Cir. 2006).
Petitioner has not identified any evidence in the state court record that in truth contradicts the Nevada Supreme Court's factual determination. Indeed, the state court record directly contradicts Harman's description of what transpired and fully supports the finding of the Supreme Court of Nevada. According to Harman, the state district court indicated at the beginning of the proceeding that it had no discretion vis-a-vis the habitual offender adjudication and thereafter remained under this erroneous assumption when it later adjudicated Harman a habitual criminal. What the transcript instead shows, however, is that the district court made the statement relied upon by Harman at the very end of the proceeding, well after making the habitual offender finding, and with regard to an entirely different issue. The Nevada Supreme Court's factual finding accordingly is fully supported by the state court record and is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1).
Ground 1 therefore does not provide a basis for federal habeas relief. Ground 2: Ineffective Assistance for Failing to Challenge the Life Sentence as Exceeding the Enhancement Limits Allowed by the Prior Convictions
In Ground 2, petitioner contends that he was denied effective assistance of trial and appellate counsel because counsel failed to challenge the imposition of a life sentence on the ground that the plea agreements on the three prior California convictions specifically and expressly limited the use of the convictions for enhancement to a maximum possible enhancement of sixteen years. He contends that such a challenge would have been successful because the Nevada state courts were required by Article IV, Section I of the Constitution to give full faith and credit to these alleged enhancement restrictions in the California plea agreements. He further contends that he was prejudiced by being improperly adjudicated a habitual criminal as well as by being sentenced to a life sentence exceeding the maximum sixteen year enhancement allegedly permitted by the plea agreements.
Harman premises this claim on the following acknowledgments in the form guilty plea agreements entered into respectively on the three prior convictions for burglary in the Santa Barbara, California County Superior Court.
In paragraph 14 in the 1984 form plea agreement in Case No. 151169, petitioner acknowledged:
I understand that if I am pleading guilty or "no contest" to a serious felony offense or offenses, I could receive an additional five years in state prison if I were to be convicted of another serious felony offense in the future.Exhibit "D" to the State Court Petition (#7, Ex. 6).
In paragraph 12 under "Consequences of Plea" in the 1987 form plea agreement in Case No. 166607, petitioner acknowledged:
I understand that if I am convicted in the future of another felony offense that because of this plea today, I could be charged with additional enhancements in those proceedings which could add another 1 to 10 years in state prison.Exhibit "E" to the State Court Petition (#7, Ex. 6). The lining through is by hand. It is not clear from the copy of the plea agreement tendered by the petitioner when the lining through was performed, but the point is not a material one to the Court's resolution of the claim.
In paragraph 12 under "Consequences of Plea" in the 1989 form plea agreement in Case No. 175816, petitioner acknowledged:
I understand that if I am convicted in the future of another felony offense that because of this plea today, I could be charged with additional enhancements in those proceedings which could add another 1 to 10 years in state prison.Exhibit "F" to the State Court Petition (#7, Ex. 6).
Petitioner deduces an overall sixteen year maximum limit on any future enhancement in any jurisdiction by combining the five year, one year, and ten year periods referenced respectively in the three acknowledgments. Petitioner did not present a copy of a California state court order or judgment stating that any such conviction, either singly or together with other conviction, could not be used, in California or any other jurisdiction, to impose a habitual criminal enhancement sentence in excess of sixteen years or any other determinate amount. The abstracts of judgment submitted reflected no such restriction.
The Supreme Court of Nevada rejected this ineffective assistance claim on the following grounds:
. . . Harman claimed that trial counsel was ineffective for failing to argue that Harman's prior convictions were insufficient to support a life sentence. To this end, Harman asserted that his California plea agreements limited the enhancements that he could receive for subsequent felony convictions, and argued that the district court was required to give full faith and credit to these limitations. We note that in his signed guilty plea agreement, Harman acknowledged that the State was free to seek habitual criminal treatment and that he might be imprisoned for "life with the possibility of parole beginning after ten years have been served." Based on this acknowledgment, we conclude that Harman failed to show a reasonable probability that he wound not have pleaded guilty and would have insisted on going to trial. Therefore, Harman failed to demonstrate that counsel was ineffective on this issue.[FN5]
[FN5] To the extent that Harman also claimed ineffective assistance of appellate counsel, we conclude that he failed to demonstrate that this claim "would have a reasonable probability of success on appeal." Kirksey [v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113 (1996) (applying the Strickland standard)].May 28, 2004, Order of Affirmance, at 3 n. 5 (#7, Ex. 11).
The Nevada Supreme Court's rejection of this claim was neither contrary to nor an unreasonable application of clearly established law as determined by the United States Supreme Court.
On a claim for ineffective assistance of counsel, the petitioner must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must demonstrate that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's defective performance resulted in actual prejudice.
On the performance prong, the question is not what counsel might have done differently but rather is whether counsel's decisions were reasonable from counsel's perspective at the time. In this regard, the reviewing court starts from a strong presumption that counsel's conduct fell within the wide range of reasonable conduct. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).
On the prejudice prong, the petitioner must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee, supra. Application of this general principle to the specific context of a guilty plea leads to the requirement that the petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
When evaluating claims of ineffective assistance of appellate counsel, the performance and prejudice prongs partially overlap. E.g., Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir. 2001); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Effective appellate advocacy requires weeding out weaker issues with no likelihood of success. The failure to present a weak issue on appeal neither falls below an objective standard of competence nor causes prejudice to the client for the same reason — because the omitted issue has little or no likelihood of success on appeal. Id.
In this case, the Nevada Supreme Court's rejection of the ineffective assistance claim in Ground 2 was neither contrary to nor an unreasonable application of Strickland. The state high court's rejection of the allegation of ineffective assistance of appellate counsel in particular signified a determination that Harman had failed to demonstrate a reasonable probability that the underlying full faith and credit objection had sufficient merit to change the outcome of the proceeding. This determination logically and necessarily extended equally to the post-plea sentencing proceedings in the state district court as it did to the proceedings on appeal.
Such a determination was not objectively unreasonable. The plea agreement language relied upon by Harman appears on its face to be no more than an acknowledgment of the potential enhancement consequences under California law from each conviction standing alone. The form acknowledgment does not speak to Harman's potential habitual criminal enhancement exposure if he instead were convicted multiple additional times, and the language does not purport to speak to Harman's potential enhancement exposure in other jurisdictions. That is, the acknowledgment speaks only to the possible enhancement effect of the one conviction, standing alone, under the law in that jurisdiction. More to the point, the acknowledgments in the plea agreements do not at all, as Harman contends, specifically and expressly limit the use of the convictions for enhancement. Moreover, Harman has not shown that the acknowledgments were included in any language in a California decree or judgment that purported to expressly place limits on an enhancement penalty that might be imposed in a later case, much less one in another jurisdiction. The factual predicate for Harman's full faith and credit objection therefore is a highly dubious one.
Nor has Harman come forward with apposite case authority establishing the legal predicate for his full faith and credit objection. Harman has not come forward with apposite authority — existing at the relevant time in and after 2001 or now — applying the Full Faith and Credit Clause to limit a state's use of a judgment of conviction from a different state in applying its own recidivist-enhancement statute. He in particular has not cited any case authority holding that acknowledgments such as those found in his 1984, 1987, and 1989 plea agreements created a limitation enforceable under the Full Faith and Credit Clause on the enhancement sentence that a court in another jurisdiction could impose.
The Nevada Supreme Court's rejection of the ineffective assistance of counsel claim therefore was neither contrary to nor an unreasonable application of Strickland, as Harman failed to demonstrate that there was a reasonable probability that a full faith and credit objection, if raised, would have changed the outcome of either the sentencing proceedings or the appeal.
Ground 2 therefore does not provide a basis for federal habeas relief. Ground 3: Ineffective Assistance for Failing to Challenge Lack of Jury Determination of Facts on Habitual Criminal Adjudication
Petitioner initially claimed also that the state district court erroneously relied upon a fourth conviction that had been excluded from consideration. In his traverse, petitioner appears to abandon any claim under Ground 2 other than that discussed in the text. The claim regarding the fourth conviction in any event is without merit. The reference to the fourth conviction in the original judgment was a clerical error that later was corrected. The transcript reflects that the state district judge considered only the three California burglary convictions.
In Ground 3, petitioner contends that he was denied effective assistance of trial and appellate counsel because counsel failed to challenge the absence of a jury determination of the facts on the habitual criminal adjudication.
The Supreme Court of Nevada rejected the corresponding ineffective assistance claim in that court on the following grounds:
. . . Harman claimed that trial counsel was ineffective for failing to challenge the district court's usurpation of his right to a jury determination of the facts used to adjudicate him a habitual criminal. We have previously held that "[o]ne facing adjudication as a habitual criminal and the consequent life imprisonment is not entitled to a trial by jury."[FN6] Therefore, Harman failed to demonstrate that counsel was ineffective on this issue.
[FN6] Clark v. State, 109 Nev. 426,428,851 P.2d 426, 427 (1993) (citing Howard v. State, 83 Nev. 53,422 P. 21d 548 (1967)).May 28, 2004, Order of Affirmance, at 3 n. 6 (#7, Ex. 11).
The Nevada Supreme Court's rejection of the claim was neither contrary to nor an unreasonable application of Strickland.
In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the United States Supreme Court held that a sentencing court may enhance a sentence on the basis of prior convictions even if the fact of those convictions was not found by a jury beyond a reasonable doubt. Harman notes, correctly, that the Supreme Court called the continuing vitality of Almendarez-Torres into serious question only two years later in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). While this is true, it also remains true that Apprendi did not overrule Almendarez-Torres. Parties repeatedly have requested that the Ninth Circuit disregard Almendarez-Torres based upon Apprendi and other subsequent Supreme Court pronouncements. The Court of Appeals repeatedly has rejected these entreaties, holding in 2000, 2001, 2005, and again recently in 2007, that Almendarez-Torres remains binding law until explicitly overruled by the Supreme Court. See United States v. Martinez-Rodriguez, ___ F.3d ___, 2007 WL 10031 (9th Cir., Jan. 3, 2007) (under headnote [3]); United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir. 2005); United States v. Reyes-Pacheco, 248 F.3d 942, 944-45 (9th Cir. 2001); United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir. 2000).
In light of the above Ninth Circuit precedent, it was not objectively unreasonable for the Supreme Court of Nevada to reject a claim alleging that trial and appellate counsel were ineffective for failing to challenge the habitual offender adjudication for lack of a factual finding by a jury. An implicit conclusion that Almendarez-Torres remained good law and that Harman therefore could not demonstrate prejudice from a failure to raise the challenge at trial or on appeal was not objectively unreasonable. Harman nonetheless urges that counsel should have challenged the lack of a jury factual determination as to unspecified facts relied upon in the habitual criminal adjudication other than the convictions themselves, and he seeks to distinguish Almendarez-Torres on this basis. However, Harman has not come forward with any apposite authority holding that a jury determination is required in a habitual criminal adjudication as to facts other than the convictions themselves. He therefore cannot establish prejudice from the failure of counsel to pursue this distinction.
Ground 3 therefore does not provide a basis for federal habeas relief.
IT THEREFORE IS ORDERED that the petition for a writ of habeas corpus shall be DENIED on the merits and that the petition shall be DISMISSED with prejudice. The Clerk of Court shall enter final judgment accordingly in favor of respondents and against petitioner.
Petitioner contends in his traverse that respondents failed to file all state court record materials required by Rule 5 of the Rules Governing Section 2254 Cases. He requests that the Court order respondents to file his opening brief, appendix, and motion to file proper person briefs and papers from his appeal in the state post-conviction proceedings. While respondents failed to file all state court appellate briefs as required by Rule 5(d)(1), it nonetheless remains true that all state court record materials necessary to the resolution of the petition in this matter are on file. Petitioner points out that respondents referred in their answer to Exhibit Nos. 12, 13 and 14 but filed only eleven exhibits. Petitioner acknowledges, however, that all of the materials referred to in the omitted exhibits are in the record as exhibits D, E and F to his state post-conviction petition, which is filed in its entirety as Exhibit No. 6 to the answer. All materials and transcripts relevant to the issues presented are of record in this matter, and the respondents failure to fully comply with Rule 5(d) did not affect petitioner's substantial rights herein. Cf. Fed.R.Civ.Pro. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."). The Court trusts that respondents' counsel in future will comply fully with all requirements of Rule 5.