Opinion
Case No. 3:07-cv-00295-LRH-(VPC).
March 12, 2010
ORDER
Before the Court are the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (#2), Respondents' Answer (#32), and Petitioner's Reply (#35). The Court finds that relief is not warranted, and it denies the Petition (#2).
After a jury trial in the Eighth Judicial District Court of the State of Nevada, Petitioner was found guilty of burglary and petit larceny. The trial court treated Petitioner as a habitual criminal, pursuant to Nev. Rev. Stat. § 207.010; he received a sentence of life imprisonment with the possibility of parole after 10 years for burglary, and a concurrent sentence for petit larceny with a minimum of 5 years and a maximum of 10 years in prison. Ex. 7 (#21-3, p. 7). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 17 (#21-5, p. 18). Petitioner then filed in the state district court a post-conviction habeas corpus petition. Ex. 19 (#21-6, p. 1). The district court denied the petition. Ex. 22 (#21-7, p. 29). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 24 (#21-8, p. 1).
Page numbers in parentheses refer to the images of the documents in the Court's computer docket.
Petitioner then commenced this action. The Court dismissed Ground 1 because it determined that Petitioner had received a full and fair opportunity to litigate that Fourth Amendment claim in the state courts. Order (#6) (citing Stone v. Powell, 428 U.S. 465, 481-82 (1976)). The Court dismissed the speedy-trial claims in Ground 3 because Petitioner had procedurally defaulted them. Order (#26). Ground 2, and the part of Ground 3 that alleges ineffective assistance of counsel, remain.
On direct appeal, the Nevada Supreme Court summarized the facts established at trial:
Taken into custody on suspicion in an unrelated offense, Morrison consented to a search of his backpack, which contained two women's sweat suits (with Macy's department store price tags attached), an evening dress, and cosmetics. Police detectives contacted a Macy's loss prevention officer about the clothing and discovered that a person matching Morrison's description had recently been involved in an incident at the store. The loss prevention officer observed Morrison acting suspiciously, namely that Morrison walked around the women's department with several articles of clothing draped over his arm and then moved behind a partition out of the surveillance camera's view. He emerged from behind the partition carrying a full plastic Macy's bag, with the clothing no longer draped over his arm. Morrison bypassed the cash registers and left the store. Morrison was charged with burglary and petit larceny. At trial, all but one of the clothing items discovered in Morrison's backpack were identified as coming from the Macy's store.
Ex. 17, pp. 3-4 (#21-5, pp. 22-23).
"A federal court may grant a state habeas petitioner relief for a claim that was adjudicated on the merits in state court only if that adjudication `resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,'" Mitchell v. Esparza, 540 U.S. 12, 15 (2003) (quoting 28 U.S.C. § 2254(d)(1)), or if the state-court adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2).
A state court's decision is "contrary to" our clearly established law if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." A state court's decision is not "contrary to . . . clearly established Federal law" simply because the court did not cite our opinions. We have held that a state court need not even be aware of our precedents, "so long as neither the reasoning nor the result of the state-court decision contradicts them."Id. at 15-16. "Under § 2254(d)(1)'s `unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotations omitted).
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
"Rule 7 of the Rules Governing § 2254 cases allows the district court to expand the record without holding an evidentiary hearing." Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005). 28 U.S.C. § 2254(e)(2) restricts the availability of an evidentiary hearing when the petitioner fails to develop the factual record in the state courts; its requirements apply to a Rule 7 expansion of the record, even without an evidentiary hearing. Cooper-Smith, 397 F.3d at 1241. "An exception to this general rule exists if a Petitioner exercised diligence in his efforts to develop the factual basis of his claims in state court proceedings." Id.
The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
Ground 2 contains several claims regarding Petitioner's treatment as a habitual criminal. First, Petitioner alleges that he was not properly charged, because the criminal complaint filed in the justice court charged him with petit larceny, a misdemeanor, while the information filed in the district court after he was bound over for trial charged him with petit larceny, a category B felony. The Nevada Supreme Court held that this claim was procedurally barred because Petitioner could have raised it on appeal. Ex. 24, p. 9 (#21-8, p. 10) (citing Nev. Rev. Stat. § 34.810). As the Court explained in its earlier Order (#26), that ground for dismissal is an adequate and independent state rule that precludes federal review of this claim. Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). This part of Ground 2 is procedurally defaulted.
Petitioner was charged pursuant to the small habitual criminal provision, which elevates petit larceny to a category B felony.See Nev. Rev. Stat. § 207.010(a).
Second, Petitioner argues that the sentencing court did not make particularized findings of fact that it was just and proper to treat him as a habitual criminal. On this issue, the Nevada Supreme Court held:
Finally, Morrison argues that the district court abused its discretion in adjudicating him a habitual criminal by failing to weigh appropriate factors for and against imposing the habitual criminal enhancement. Specifically, he argues that the district court's comments during sentencing do not reflect any rational consideration of the appropriateness of the enhancement. He further contends that the district court abused its discretion in adjudicating him a habitual criminal because the prior felonies upon which the enhancement was premised were stale and trivial.
We have held that "as long as the record as a whole indicates that the sentencing court was not operating under a misconception of the law regarding the discretionary nature of a habitual criminal adjudication and that the court exercised its discretion, the sentencing court has met its obligation under Nevada law." Here, we conclude that the district court did not abuse its discretion in relying on Morrison's five prior felony convictions in adjudicating him a habitual criminal. We further conclude that the record demonstrates that the district court properly exercised its discretion in determining that such an adjudication was warranted in this case.
Ex. 17, p. 5 (#21-5, p. 24) (citing Hughes v. State, 996 P.2d 890, 893-94 (Nev. 2000) (per curiam)). Contrary to Petitioner's argument, Nev. Rev. Stat. § 207.010 does not require particularized findings of fact. Tilcock v. Budge, 538 F.3d 1138, 1144 (9th Cir. 2008) (citing O'Neill v. State, 153 P.3d 38 (Nev. 2007), Hughes v. State, 996 P.2d 890 (Nev. 2000) (per curiam)). The transcript of the sentencing hearing shows that the judge considered the arguments of both sides before deciding to impose the habitual criminal enhancement. Ex. 6 (#21-3, p. 1). This part of Ground 2 is without merit.
Third, Petitioner argues that the decision to treat him as a habitual criminal violates various provisions of the Constitution of the State of Nevada. This part of Ground 2 is not addressable in federal habeas corpus, because this Court can grant Petitioner relief "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
Fourth and last, Petitioner argues that appellate counsel provided ineffective assistance. This claim duplicates the ineffective-assistance claim in Ground 3.
The remaining part of Ground 3 contains multiple claims of ineffective assistance of trial counsel, sentencing counsel, and appellate counsel. "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). A petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. "[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
Strickland expressly declines to articulate specific guidelines for attorney performance beyond generalized duties, including the duty of loyalty, the duty to avoid conflicts of interest, the duty to advocate the defendant's cause, and the duty to communicate with the client over the course of the prosecution. 466 U.S. at 688. The Court avoided defining defense counsel's duties so exhaustively as to give rise to a "checklist for judicial evaluation of attorney performance. . . . Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Id. at 688-89.
Review of an attorney's performance must be "highly deferential," and must adopt counsel's perspective at the time of the challenged conduct to avoid the "distorting effects of hindsight." Strickland, 466 U.S. at 689. A reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"Id. (citation omitted).
The Sixth Amendment does not guarantee effective counsel per se, but rather a fair proceeding with a reliable outcome. See Strickland, 466 U.S. at 691-92. See also Jennings v. Woodford, 290 F.3d 1006, 1012 (9th Cir. 2002). Consequently, a demonstration that counsel fell below an objective standard of reasonableness alone is insufficient to warrant a finding of ineffective assistance. The petitioner must also show that the attorney's sub-par performance prejudiced the defense.Strickland, 466 U.S. at 691-92. There must be a reasonable probability that, but for the attorney's challenged conduct, the result of the proceeding in question would have been different.Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
If a state court applies the principles of Strickland to a claim of ineffective assistance of counsel in a proceeding before that court, the petitioner must show that the state court appliedStrickland in an objectively unreasonable manner to gain federal habeas corpus relief. Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
Petitioner presents twenty-three instances of ineffective assistance his trial counsel, Craig Jorgenson. The Nevada Supreme Court considered five of them in detail. First, he claims that Jorgenson failed to challenge an erroneous information that charged him with a felony for petit larceny rather than a misdemeanor for petit larceny. The Nevada Supreme Court held:
Morrison first contended that trial counsel Craig Jorgenson was ineffective for failing to challenge an allegedly erroneous information, which he argued demonstrated that the State engaged in prosecutorial misconduct and provided inadequate notice that he would have to defend himself against a felony charge rather than a misdemeanor petit larceny charge. An information filed on October 7, 2004, charged Morrison with burglary and "petit larceny (Felony-NRS 205.240)." However, the information advised Morrison that the State intended to seek habitual criminal status should he be found guilty of the primary offenses of burglary and petit larceny. NRS 207.010(1)(a) provides that a person convicted of petit larceny "who has previously been two times convicted . . . of any crime which under the laws of the situs of the crime or of this State would amount to a felony . . . is a habitual criminal and shall be punished for a category B felony." A habitual criminal adjudication pursuant to NRS 207.010(1)(a) elevated the petit larceny charge to a class B felony, as reflected in the information. Counsel had no reason to object to the information on the grounds Morrison asserted in his petition. Therefore, we conclude that the district court did not err in summarily denying this claim.
Ex. 24, pp. 2-3 (#21-8, pp. 3-4) (citation omitted). See also Ex. 3 (#21-1, p. 1) (information). Given that the information properly charged Petitioner, counsel could not have been ineffective because he did not challenge it. The Nevada Supreme Court reasonably applied Strickland.
Second, Petitioner claims that Jorgenson did not seek dismissal based upon a violation of Nevada's speedy trial law, Nev. Rev. Stat. § 178.556(1). On this issue, the Nevada Supreme Court held:
Morrison next argued that trial counsel was ineffective for not seeking dismissal of the information based on an alleged speedy trial violation. NRS 178.556(1) provides that a defendant should be brought to trial within 60 days after the arraignment on the indictment or information. Morrison's trial commenced 63 days after his arraignment. However, "the failure to set a trial within 60 days is not per se equatable to the denial of a speedy trial." Here, although Morrison asserted his right to a speedy trial and the delay appears to be related to the district court's schedule, [fn 8] the length of the delay was minimal and Morrison did not adequately explain any resulting prejudice. Consequently, we conclude that there was no reasonable probability that the result of his trial would have been different had counsel sought a dismissal on speedy trial grounds. Therefore, the district court did not err in summarily denying this claim.
[Footnote 8] The district court minutes reveal that the State and the defense were ready to proceed within 60 days of arraignment, but the district court referred Morrison's case to the overflow calendar and set the trial for December 20, 2004, 63 days after arraignment.
Ex. 24, pp. 3-4 (#21-8, pp. 4-5) (citations omitted). "[B]efore error for failure to accord a speedy trial can be raised on appeal, objection to the trial date set must have been made in the trial court." Anderson v. State, 477 P.2d 595, 598 (Nev. 1970). However, if Jorgenson had objected to the date, the result would not have been the dismissal of the action. Instead, the court either would have set the trial on an earlier date or explained why it could not set the trial on an earlier date. See Harris v. State, 466 P.2d 850, 852 (Nev. 1970). Either way, the outcome of the trial would not have differed. The Nevada Supreme Court reasonably applied Strickland.
Third, Petitioner argues that Jorgenson failed to challenge the validity of the search of his backpack. On this issue, the Nevada Supreme Court held:
Morrison asserted that his trial counsel was ineffective for not challenging the search of Morrison's backpack. Morrison acknowledged that he consented to a reasonable search of the backpack but that the search conducted was unreasonable because the items confiscated were unrelated to the charge for which he was being investigated. To succeed on a claim of ineffective assistance of counsel based on counsel's failure to seek suppression of allegedly illegally seized evidence, Morrison was required to establish prejudice by "showing that the claim was meritorious and that there was reasonable likelihood that the exclusion of the evidence would have changed the result of the trial."
Here, Morrison was taken into custody on suspicion of an unrelated offense of automobile burglary. During questioning, Morrison signed a consent form and orally granted detectives permission to search his backpack. Although detectives initially conducted the search to recover items related to the automobile burglary, they discovered a plastic bag containing women's clothing with Macy's department store price tags attached and no accompanying receipt. Subsequent investigation led to Morrison's arrest and conviction for the instant offenses. Morrison testified on his own behalf at trial and made no allegation that the search conducted extended beyond that to which he consented. Even assuming trial counsel had challenged the constitutionality of the search of his backpack, we conclude that there was no reasonable probability that the result of his trial would have been different. Therefore, we conclude that the district court did not err in summarily denying this claim.
Ex. 24, pp. 4-5 (#21-8, pp. 5-6) (citations omitted). Once Petitioner consented to the search of the backpack, any items that the detectives found in their plain view are subject to seizure, even if those items did not have any relation to the automobile burglary under investigation. See Harris v. United States, 390 U.S. 234, 236 (1968). Jorgenson could not have succeeded with a motion to suppress the items taken from Macy's. The Nevada Supreme Court reasonably applied Strickland.
Fourth, Petitioner argues that Jorgenson failed to secure an affidavit from Josie Bayudan, who represented Petitioner in an earlier criminal case. Petitioner alleges that Bayudan's affidavit would support his claim of malicious prosecution because the prosecutor was angered at the acquittal of Petitioner in the automobile burglary case. On this issue, the Nevada Supreme Court held:
Morrison next argued that trial counsel was ineffective for failing to secure an affidavit from Josie T. Bayudan, who represented Morrison in another criminal matter (case no. C-205109). Morrison contended that Bayudan's affidavit would have supported a claim of malicious prosecution because Bayudan was aware that the prosecutor in case no. C-205109, who also prosecuted Morrison in the instant action, was "pissed off" at Morrison as a result of his acquittal in that case. Morrison claimed that the prosecutor's animosity toward him formed the impetus for the instant prosecution and that trial counsel was aware of the prosecutor's feelings well before trial. However, even assuming the prosecutor expressed unhappiness about Morrison's prior acquittal, we conclude that there was no reasonable probability, considering the evidence against him, that the result of his trial would have been different had trial counsel challenged the prosecution as Morrison desired. Therefore, we conclude that the district court did not err in summarily denying this claim.
Ex. 24, pp. 5-6 (#21-8, pp. 6-7). Petitioner was bound over to the state district court on October 4, 2004. Ex. 3 (#21, p. 15). He was arraigned in district court in this case on October 18, 2004. Ex. 4 (#21-1, p. 5). He was tried and acquitted in the automobile burglary case no. C-205109, on November 24, 2004. The prosecutor might not have been pleased that Petitioner was acquitted in case no. C-205109, but a claim that the prosecution in this case was motivated by the loss in the other case would require the prosecutor to have seen into the future. An affidavit would not have changed the result of Petitioner's trial in this case. The Nevada Supreme Court reasonably applied Strickland.
Fifth, Petitioner argues that Jorgenson failed to object to the judge's incorrect statement on the burden of proof. In his state habeas corpus appeal, the Nevada Supreme Court held:
Morrison argued that counsel was ineffective for failing to object to an improper reasonable doubt instruction at the beginning of the trial. On direct appeal, we concluded that the instruction was erroneous, but that Morrison suffered no prejudice considering the district court's subsequent proper instructions respecting reasonable doubt and the burden of proof. Here, we conclude that there was no reasonable probability that the result of his trial would have been different even if counsel had objected to the district court's initial instruction. Therefore, the district court did not err in summarily denying this claim.
Ex. 24, p. 6 (#21-8, p. 7) (footnote omitted). On direct appeal, the Nevada Supreme Court held:
Here, while explaining the trial process, the district court initially advised the jury that after applying the law to the facts, it would decide "whether the State has met its burden in proving the defendant guilty or not guilty beyond a reasonable doubt." Every defendant is cloaked with the presumption of innocence until the contrary is proved by competent evidence beyond a reasonable doubt. We conclude that the district court's advisement was erroneous and that it was plain and clear. However, to warrant relief, the error must affect Morrison's substantial rights. At the conclusion of the evidence, the district court properly instructed the jury:
The Defendant is presumed innocent until the contrary is proved. This presumption places upon the State the burden of proving beyond a reasonable doubt every material element of the crime charged and that the Defendant is the person who committed the offense.
The district court further instructed the jury on the statutory definition of reasonable doubt. Despite the district court's initial erroneous advisement respecting the State's burden of proof, we conclude that this error did not affect Morrison's substantial rights in light of the district court's subsequent proper instructions. Therefore, we deny relief on this issue.
Ex. 17, pp. 2-3 (#21-5, pp. 21-22) (citations omitted). Even though Jorgenson did not object, the Nevada Supreme Court did consider on direct appeal the incorrect statement of the burden of proof. Its determination in the state habeas corpus proceedings that Petitioner suffered no prejudice from the lack of objection was a reasonable application of Strickland.
In a long list, Petitioner raised many other issues of ineffective assistance of trial counsel. Ex. 19 (#21-6, pp. 22-24). He raises the same issues in his Petition (#2). On these issues, the Nevada Supreme Court held:
Morrison also contended that his trial counsel was ineffective for the following reasons: counsel did not discuss a defense strategy with Morrison; counsel did not subpoena or interview potential witnesses; counsel refused to file various pretrial motions; counsel did not request a hearing to explore the validity of Morrison's prior convictions; counsel failed to appear at sentencing without explanation; [fn 13] counsel did not inform Morrison of his right to appeal or file an appeal; [fn 14] counsel allowed Morrison to testify knowing that Morrison was taking psychotropic drugs; counsel made an attempt to validate Morrison's claim that he was mentally impaired; counsel refused to provide Morrison with copies of police reports; counsel failed to object to repeated badgering during the prosecutor's cross-examination of Morrison; counsel failed to object to Morrison not being allowed to view surveillance video introduced at trial; counsel did not use a list of questions Morrison provided him; the prosecution attempted to introduce evidence not disclosed during discovery; counsel failed to object to the prosecutor's running narrative during the jury's viewing of a surveillance videotape; counsel failed to identify clear inconsistencies in the testimony of the State's witnesses; counsel appeared at trial tired, unkempt, distastefully dressed, disinterested and detached; and counsel improperly introduced a question regarding prior bad acts. However, these claims are either belied by the record or not adequately supported by specific factual allegations demonstrating prejudice. Therefore, we conclude that the district court did not err in summarily denying these claims.
[Footnote 13] Gary Guymon represented Morrison at sentencing.
[Footnote 14] Howard Brooks and Robert Miller represented Morrison in his direct appeal, which this court considered. See Morrison, Docket No. 44719.
Ex. 24, pp. 6-7 (#21-8, pp. 7-8). Given that most of his claims of ineffective assistance in his state petition were conclusory, without any allegations of fact, and given Strickland's requirement that Petitioner prove that counsel performed deficiently and prejudiced him, that was a reasonable application of Strickland.
Next in Ground 3, Petitioner argues that his counsel at sentencing, Gary Guymon, was ineffective. In his state habeas corpus appeal, the Nevada Supreme Court held:
Morrison next argued that Gary Guymon, who represented Morrison at sentencing, was ineffective for speaking harshly to him and for infuriating the district court by "stammering for approximately two to three minutes, resulting in Morrison receiving a lengthy prison sentence." The trial transcript shows that at the outset the district court was disturbed by Morrison's lengthy criminal history. Counsel attempted to persuade the district court not to adjudicate Morrison a habitual criminal considering his positive work history, that his prior convictions were all theft-related and nonviolent, and that the thefts were motivated by Morrison's drug use. We conclude that Morrison failed to demonstrate that he was entitled to an evidentiary hearing on these issues. Further, even assuming counsel communicated harshly with Morrison, no discernable prejudice resulted from it. Consequently, we conclude that the district court did not err in summarily denying this claim.
Ex. 24, pp. 7-8 (#21-8, pp. 8-9). The transcript of the sentencing hearing confirms the Nevada Supreme Court's holding regarding Guymon's argument and the judge's concern with Petitioner's criminal history. Ex. 6 (#21-3, p. 1). Furthermore, Petitioner has not demonstrated any prejudice resulting from Guymon speaking harshly to him. The Nevada Supreme Court reasonably applied Strickland.
Petitioner also claims that Guymon inappropriately waived Petitioner's presence at a hearing on his state habeas corpus petition. Petitioner did not present this claim to the Nevada Supreme Court, but the Court can deny the claim on its merits despite the failure to exhaust. 28 U.S.C. § 2254(b)(2). Apparently, the state district court conducted a hearing on Petitioner's habeas corpus petition outside of his presence. Petitioner's Ex. I (#2-1, p. 20). Petitioner has no right to appointed counsel, and thus no right to effective assistance of counsel, in state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987).
This assumes that Guymon was representing Petitioner in the state habeas corpus proceedings. Despite the transcript of the hearing listing Guymon as Petitioner's lawyer, Petitioner's state habeas corpus petition was pro se. See Ex. 19 (#21-6, p. 1).
Finally in Ground 3, Petitioner claims that his appellate attorneys were ineffective. On this issue, the Nevada Supreme Court held:
Morrison contended that his appellate counsel, Howard S. Brooks was ineffective for failing to communicate with him during his appeal. However, Brooks eventually withdrew as Morrison's counsel and Morrison did not adequately explain how he was prejudiced by Brooks' representation. Consequently, we conclude that the district court did not err in summarily denying this claim. After Brooks' withdrawal as counsel, Robert Miller was appointed to represent Morrison in his direct appeal. Morrison complained that Miller was ineffective for failing to adequately communicate with him during the appellate process and in declining to raise matters Morrison wanted included in his appeal. He did not identify in his petition below what issues he desired Miller to raise or adequately explain how his dissatisfaction with Miller prejudiced his appeal. Consequently, we conclude that the district court did not err in summarily denying this claim.
Ex. 24, pp. 8-9 (#21-8, pp. 9-10) (citation omitted). Petitioner's state habeas corpus petition does not allege what issues he wanted appellate counsel to raise, let alone whether those issues had any probability of success. The Nevada Supreme Court reasonably applied Strickland.
Petitioner raises several claims of ineffective assistance of appellate counsel that he did not raise before the Nevada Supreme Court. The Court can deny them on the merits despite the failure to exhaust. 28 U.S.C. § 2254(b)(2). First, he claims that Miller continued to represent him despite being fired. Petitioner has not alleged any prejudice that he suffered from Miller continuing to represent him. Furthermore, Respondents correctly note that Petitioner, being unable to afford his own attorney, does not have a choice of counsel to represent him. United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006) (citing Caplin Drysdale v. United States, 491 U.S. 617, 624 (1989), and Wheat v. United States, 486 U.S. 153, 159 (1988)).
Second, Petitioner alleges that Miller failed to file a supplement to his direct appeal brief. Petitioner did not present the proposed supplement to the Nevada Supreme Court in his state habeas corpus petition, thus leading to the ruling, quoted above, that he did not identify what issues he wanted counsel to raise on direct appeal. Petitioner possessed the proposed supplement and could have submitted it with his state habeas corpus petition, because during his direct appeal the clerk of the Nevada Supreme Court had sent it back to him unfiled. Petitioner failed to develop the factual basis of this claim in his state habeas corpus proceedings, and thus he cannot expand the record to include his proposed supplement in this Court. Cooper-Smith, 397 F.3d at 1241; 28 U.S.C. § 2254(e)(2).
Third, Petitioner alleges that Miller sent Petitioner a letter, along with a copy of the direct appeal order that stated that Petitioner raised three issues on appeal. See Ex. 17 (#21-5, p. 20). Petitioner claims that the Nevada Supreme Court's statement is inaccurate because Miller failed to comply with Petitioner's demand to file the supplement to the opening brief. The Court has ruled on the issue of the supplement, just above. Petitioner has demonstrated neither deficient performance nor prejudice because Miller sent him a letter and copy of the Nevada Supreme Court's order.
Fourth, Petitioner alleges that Miller filed all of his briefs late. The Nevada Supreme Court considered all of the grounds that Miller raised on their merits and did not dismiss anything for failure to comply with filing deadlines. See Ex. 17 (#21-5, p. 18). Even if Miller did file briefs late, Petitioner suffered no prejudice.
The Court concludes that reasonable jurists would not find the Court's dispositions of all grounds, including those dismissed earlier in the proceedings, to be debatable, and the Court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (#2) is DENIED. The Clerk of the Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.