Opinion
3:09-cv-0224-LRH-VPC.
November 24, 2010
ORDER
Anthony Vignoli, a Nevada prisoner, has filed a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket #27). Respondents have filed their answer (docket #28) and the matter is ripe for review and decision.
I. Procedural History
Petitioner was charged with trafficking in a controlled substance, possession of a controlled substance for purposes of sale, and conspiracy to sell a controlled substance, along with two co-defendants, Anthony Garcia and Marietta Rosalie Henson. Exhibit 13. The three were tried before a jury, and on June 2, 2005, petitioner was found guilty of Count I, trafficking in a controlled substance, and Count III, conspiracy to sell a controlled substance. Exhibit 30. During trial, the court dismissed Count II against petitioner. Exhibit 10 at 26. Petitioner was sentenced to a term of 10 to 25 years in prison on Count I and a concurrent term of 12-30 months in prison on Count III. Exhibit 34.
The exhibits cited in this order were submitted by respondents in support of their motion to dismiss and are found in the court's docket at 15.
Petitioner filed a direct appeal raising a single claim for relief objecting to the use at trial of a preliminary hearing transcript of testimony from a witness that was unavailable to testify in person. Exhibit 45. The Nevada Supreme Court affirmed his conviction. Exhibit 47.
While the appeal was still pending, petitioner filed a state post-conviction petition. Exhibit 45. He supplemented the petition raising three additional grounds for relief. Thereafter, the court appointed counsel and a second supplement was filed. Exhibit 66 and 67. An evidentiary hearing was conducted by the state district court and the petition was denied. Exhibits 79 and 94. Petitioner appealed.
On appeal petitioner raised four claims for relief. Exhibit 95. The Nevada Supreme Court affirmed the state district court's decision on March 26, 2009. Exhibit 104. Thereafter, petitioner filed his federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising eight grounds for relief (docket #6). Upon respondents' motion to dismiss, petitioner amended his petition, dropping several unexhausted claims (docket #27). Respondents have answered.
II. Standard for Review
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the standards of review that this Court applies to the petition in this case:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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; or
(2) 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).
A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1173, 155 L.Ed.2d 144 (2003) ( quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. at 74, 123 S.Ct. at 1174 ( quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. ( quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495).
In determining whether a state court decision is contrary to federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000), cert. denied, 122 S.Ct. 324 (2001)
With respect to pure questions of fact, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Discussion
Ground One
In this ground for relief, petitioner claims trial and appellate counsel were ineffective for failing to adequately litigate sentencing questions in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Specifically, petitioner asserts that the sentence he received was "highly disproportionate to the sentence imposed upon Garcia" noting that Garcia received probation and he received twenty-five years. Petitioner claims his right to equal protection was violated by the sentence and that counsel should have litigated the issue on direct appeal.
To prove ineffective assistance of counsel, petitioner must prove (1) that his attorney's actions were outside the wide range of professionally competent assistance, and (2) that counsel's actions prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-90 (1984). The Strickland Court instructed that review of an attorney's performance must be "highly deferential," and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the "distorting effects of hindsight." Id. at 689. A reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] the [petitioner] must overcome the presumption that . . . the challenged action might be considered sound trial strategy." Id. (citation omitted).
Equal protection claims arise when a charge is made that similarly situated individuals are treated differently without a rational relationship to a legitimate state purpose. See San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). To succeed on an equal protection claim, a plaintiff must allege that defendants acted with intentional discrimination. Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985); FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991).
Thus, in order for petitioner to succeed on this claim, he must be able to demonstrate that his counsel had reason to believe that the sentencing disparity between petitioner and Garcia was based on unlawful discrimination between two individuals that were similarly situated and, that despite this belief, counsel failed to object. A criminal sentence is generally within the discretion of the judge and is not reversible so long as the sentence falls within the bounds set by statute. U.S. v. Garrett, 680 F.2d 650, 652 (9th Cir. 1982). Disparity in sentences imposed upon codefendants is "well within the discretion of the sentencing judge . . . if the circumstances so require," id., as there is no obligation to impose equal sentences among codefendants. U.S. v. Kohl, 972 F.2d 294, 300 (9th Cir. 1992).
According to the Nevada Supreme Court, petitioner and Garcia were not similarly situated and the differences in their sentences was justified. In denying petitioner's claim on appeal from his post-conviction denial, the Nevada Supreme Court found that he and Garcia were not similarly situated because Garcia provided substantial assistance to the prosecution while petitioner did not. Exhibit 104, p. 7. As a result, it is impossible for petitioner to show that his counsel's performance prejudiced him in this regard. Because the sentencing disparity was within the court's discretion and justified by the assistance afforded by Garcia to the state in prosecuting the case, and because petitioner made no such contribution, an objection from counsel on this basis would not have been successful. Petitioner has not shown that his counsel was ineffective or that he was prejudiced by their performance. No relief is warranted on ground one of the second amended petition.
Ground Two
In his second ground for relief, petitioner claims he was denied the effective assistance of counsel because counsel failed to investigate and prepare for trial which, in turn, resulted in petitioner's decision to reject a plea agreement offered by the state. Petitioner argues that because counsel did not know or inform petitioner that his codefendant would testify against him, his decision to decline the plea offer was uninformed.
Counsel has "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. More specifically, "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. Petitioner claims that counsel's failure to investigate led him to reject a plea offer. His claim is without merit as the unanticipated witness, his codefendant, Garcia, was well known to counsel and to petitioner. Additional investigation would not have revealed the content of Garcia's intended testimony because the facts and circumstances of the crime were already known to petitioner. It was Garcia's right and his decision to testify in his own defense. Petitioner's counsel could not anticipate that decision.
Henson, the second co-defendant also testified against petitioner at trial. Exhibit 26, pp. 189-200. However, her testimony was not anticipated because she did not indicate a desire to testify when the court canvassed the defendants as to their right to testify or remain silent. Exhibit 26, pp 75-76.
In determining the merits of this claim, the Nevada Supreme Court concluded that the claim was without merit. The court said:
We conclude that Vignoli failed to demonstrate that his counsel was deficient or that he was prejudiced. At the evidentiary hearing, Vignoli's counsel stated that he advised Vignoli that Garcia could testify at trial and that Vignoli should accept the state's plea offer. Further, as both Garcia and Henson were codefendants, the State could not have called either of them during its case in chief. See U.S. Const. Amend. V; Nev. Const. Art. I, § 8. Henson and Garcia each had the right to testify in their own defense and could elect to exercise that right up until the close of their case in the defense. While the State called Henson in its rebuttal, it did so after she had pleaded guilty. Vignoli did not demonstrate that any investigation could have discovered that the State intended to call Henson and Garcia, that they would testify, or that Henson would plead guilty during the tiral. Therefore, the district court did not err in denying this claim.
Exhibit 104, p. 3.
As the quoted portion of the Nevada Supreme Court's order demonstrates, the state court applied the proper federal legal standard and made a reasonable determination of the facts in light of the evidence in the record in denying this ground two. Petitioner is not entitled to relief from this Court.
Ground Three
Petitioner's third ground for relief avers that he was denied the effective assistance of counsel. The facts he provides, however, do not relate to the performance of counsel. Petitioner asserts that "[t]he prosecution may not vouch for a witness; . . . The actions of DDA Pearson in asking the witnesses if Vignoli was lying cornered Vignoli into a position where he was trapped — to do so with a witness who was not disclosed and whose testimony was gained after the testimony of Vignoli had occurred only added insult to injury." Second Amended Petitioner, pp 14-15.
The facts alleged would more likely support a claim for prosecutorial misconduct. However, as respondents point out, no such claim was ever presented to the Nevada Supreme Court on direct appeal or on appeal from his denied post-conviction petition. This claim shall be denied, as petitioner has not provided any facts to support his claim that counsel was ineffective under Strickland v. Washington and he has never presented a claim of prosecutorial misconduct to the state courts.
Ground Four
Petitioner claims that his trial and appellate counsel were ineffective for failing to object to State's witnesses being noticed during the middle of the trial, violating his due process rights to adequate notice of witnesses against him guaranteed by the Fifth Amendment.
Petitioner complains that after he had testified in his own defense, the State put on his codefendant, Henson, who had negotiated a favorable guilty plea. According to the petitioner, his second codefendant, Garcia, also testified against him after Garcia was informed that his sentence might be favorably impacted if he offered substantial assistance to the prosecution. Petitioner contends this turn of events violated the Nevada law requiring at least five days notice to the defense of any witness testifying against him. Petitioner argues this denied him a fair trial and that counsel was ineffective for failing to object to the "tactic of the State," and appellate counsel was ineffective for failing to raise the issue on direct appeal.
The Nevada Supreme Court concluded as follows:
. . . Vignoli failed to demonstrate that his counsel was deficient. The State must "file and serve upon the defendant a written notice containing the names and last known addresses of all witnesses the prosecuting attorney intends to call during the case in chief of the State. NRS 174.234(1)(a)(2). The State did not call Henson or Garcia during its case in chief. Moreover, the State could not have called either Garcia or Henson during its case in chief because they were codefendants in the same trial against Vignoli. See U.S. Const. Amend. V; Nev. Const. Art. I, § 8. While both Garcia and Henson testified at trial, Garcia offered his testimony during his defense and the State's rebuttal, and Henson testified during the State's rebuttal case after she entered a guilty plea. Therefore, the district court did not err in denying this claim.
Exhibit 104, p. 5.
Petitioner cannot show that this state court decision was contrary to or an unreasonable application of clearly established federal law. He has not shown that his counsel's performance was deficient, as no objection to the witnesses was available and no claim related to their appearance and testimony would have changed the outcome on appeal.
Ground four of the second amended petition is without merit and no relief shall be granted.
IV. Certificate of Appealability
In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed.R.App.P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); s ee also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. ( quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id.
Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing Section 2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for certificate of appealability to be filed. Rule 11(a). This Court has considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard. The Court will therefore deny petitioner a certificate of appealability.
IT IS THEREFORE ORDERED that Second Amended Petition for Writ of Habeas Corpus (docket #27) is DENIED. IT IS FURTHER ORDERED that no Certificate of Appealability shall issue in this matter. The Clerk shall enter judgment accordingly.
Dated this 24th day of November, 2010.