Dozier v. Neven ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 ESAU DOZIER, Case No. 2:08-cv-00489-KJD-GWF 10 Petitioner, ORDER v. 11 DWIGHT NEVEN, et al., 12 Respondents. 13 14 Esau Dozier’s 28 U.S.C. § 2254 petition for writ of habeas corpus is before the 15 court for final disposition on the merits (ECF No. 6). 16 I. Background & Procedural History 17 In December 2004, a jury convicted Dozier of two counts of robbery with a deadly 18 weapon (counts 1 and 2) and burglary (count 3). Exh. 31.1 The state district court 19 sentenced him as follows: 72 to 180 months each on counts 1 and 2, with a like and 20 consecutive term for the deadly weapon enhancement on each count; 72 to 180 months 21 on count 3, counts 1 and 2 to run consecutively, and count 3 to run concurrently. Exh. 22 36, p. 24. Judgment was entered in February 2005. Exh. 37. 23 The Nevada Supreme Court affirmed Dozier’s convictions and subsequently 24 affirmed the denial of his state postconviction petition. Exhs. 56, 85. 25 This court originally granted respondents’ motion to dismiss this federal petition as 26 time-barred, and judgment was entered (ECF No. 25, 26). Dozier ultimately filed a 27 1 motion for relief from judgment, which demonstrated that respondents had failed to 2 provide this court with the complete state-court record and that the complete state-court 3 record demonstrated that Dozier’s federal petition was in fact timely (ECF No. 36). This 4 court vacated the judgment and directed respondents to answer grounds 1 and 3 (ECF 5 No. 48). Respondents have answered, and petitioner filed a reply (ECF No. 53, 54). 6 II. Antiterrorism and Effective Death Penalty Act 7 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty 8 Act (AEDPA), provides the legal standards for this court’s consideration of the petition in 9 this case: 10 An application for a writ of habeas corpus on behalf of a person in 11 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 12 proceedings unless the adjudication of the claim 13 (1) resulted in a decision that was co―ntrary to, or involved an unreasonable application of, clearly established Federal law, as determined 14 by the Supreme Court of the United States; or 15 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State 16 court proceeding. 17 The AEDPA “modified a federal habeas court’s role in reviewing state prisoner 18 applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court 19 convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 20 685, 693-694 (2002). This Court’s ability to grant a writ is limited to cases where “there 21 is no possibility fair-minded jurists could disagree that the state court’s decision conflicts 22 with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The 23 Supreme Court has emphasized “that even a strong case for relief does not mean the 24 state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 25 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing 26 the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating 27 1 state-court rulings, which demands that state-court decisions be given the benefit of the 2 doubt”) (internal quotation marks and citations omitted). 3 A state court decision is contrary to clearly established Supreme Court 4 precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that 5 contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state 6 court confronts a set of facts that are materially indistinguishable from a decision of [the 7 Supreme Court] and nevertheless arrives at a result different from [the Supreme 8 Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 9 405-06 (2000), and citing Bell, 535 U.S. at 694. 10 A state court decision is an unreasonable application of clearly established 11 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court 12 identifies the correct governing legal principle from [the Supreme Court’s] decisions but 13 unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 14 U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause 15 requires the state court decision to be more than incorrect or erroneous; the state 16 court’s application of clearly established law must be objectively unreasonable. Id. 17 (quoting Williams, 529 U.S. at 409). 18 To the extent that the state court’s factual findings are challenged, the 19 “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas 20 review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause 21 requires that the federal courts “must be particularly deferential” to state court factual 22 determinations. Id. The governing standard is not satisfied by a showing merely that the 23 state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires 24 substantially more deference: 25 .... [I]n concluding that a state-court finding is unsupported by substantial 26 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. 27 Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the 1 2 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393 3 F.3d at 972. 4 Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be 5 correct unless rebutted by clear and convincing evidence. The petitioner bears the 6 burden of proving by a preponderance of the evidence that he is entitled to habeas 7 relief. Cullen, 563 U.S. at 181. III. Instant Petition 8 Ground 1 9 Dozier contends that his convictions were not supported by sufficient evidence in 10 violation of his Fourteenth Amendment due process rights (ECF No. 6, p. 3). He argues 11 that the robbery victims were unable to identify him and that the State did not establish 12 use of a deadly weapon beyond a reasonable doubt. 13 “The Constitution prohibits the criminal conviction of any person except upon proof 14 of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309 (1979) 15 (citing In re Winship, 397 U.S. 358 (1970)). On federal habeas corpus review of a 16 judgment of conviction pursuant to 28 U.S.C. § 2254, the petitioner “is entitled to 17 habeas corpus relief if it is found that upon the record evidence adduced at the trial no 18 rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. at 19 324. “[T]he standard must be applied with explicit reference to the substantive elements 20 of the criminal offense as defined by state law.” Id. at 324 n.16. On habeas review, this 21 court must assume that the trier of fact resolved any evidentiary conflicts in favor of the 22 prosecution and must defer to such resolution. Id. at 326. Generally, the credibility of 23 witnesses is beyond the scope of a review of the sufficiency of the evidence. Schlup v. 24 Delo, 513 U.S. 298, 330 (1995). 25 Demissie Kelemework testified at trial that she had been visiting Reno with several 26 friends on the night in question. Exh. 29, pp. 113-129. She and Mulunesh Gutema had 27 stepped inside their motel room when a man pushed into the room before she locked 1 the door. Kelemework said that the man had a black gun that was probably 12 inches 2 long. She described the man as black, about 150 to 160 pounds, neat, clean-shaven 3 and nicely dressed. He took her fanny pack and other items and stuffed them in a red 4 bag that was in the room. He took a gift bag that belonged to a black woman from 5 Pleasanton, California who was not in the room at the time. Kelemework identified 6 Dozier and one other man from a police photo lineup as the possible robber. In court, 7 while she identified Dozier, she acknowledged that she was not 100% certain he was 8 the robber. 9 Ms. Gutema also testified. Id. at 129-143. She stated that she and Kelemework had 10 gone back to their motel room to get their jackets. She had about $600-700 in a fanny 11 pack that she was wearing. The man that forced his way into their room was black with 12 a shaved or bald head and had a black gun about 12 inches long. He put all the items 13 he took in a red bag with a black strap that belonged to Gutema. She testified that she 14 was not certain Dozier was the robber. 15 Reno Police Officer Thomas Mueller testified that he met with the victims the night of 16 the robbery. Id. at 143-150. They described the robber as a black male, approximately 17 30 to 40 years of age with a shaved head, clean-shaven, 160 to 180 pounds, wearing 18 black and holding a black pistol. Reno Police Officer Eric Stroshine testified that a 19 couple of months after the robbery he was contacted by Katherine Stewart, who wanted 20 to file a report of an embezzled vehicle. Id. at 150-152. Stewart also told him she had 21 information about the armed robbery. Months before trial, the state district court issued 22 a material witness order requiring Stewart to post bail as a material witness in order to 23 secure her presence at Dozier’s trial. Exh. 9. 24 Katherine Stewart subsequently testified at trial that Dozier had been her boyfriend 25 for about a year and one-half. Exh. 29, pp. 156-177. Dozier had a black revolver about 26 12 inches long. On the night in question, Stewart and Dozier did not have a place to 27 stay, so she parked in downtown Reno and was going to sleep in her car. Dozier’s gun 1 was in a suitcase in the trunk of her car. He told her he was going to “go do some 2 hustling,” he went to the trunk of the car, but Stewart did not see what he took from the 3 trunk. Dozier was dressed in a black leather jacket, black t-shirt, dark Levi’s, and black 4 boots. Stewart locked the car and went to sleep. Dozier returned, Stewart unlocked the 5 car, Dozier threw a red bag with a black strap in the car, got in the driver’s seat, started 6 the car and drove away. She described him as “excited, wanting to get out of there; he 7 was sweating.” Id. at 165. He drove them to Sparks and got a room at a Motel 6. In the 8 hotel room he dumped out the bag, and Stewart saw two purses or fanny packs and a 9 gift bag. In the purse was a California driver’s license with a photo of a black woman 10 and a Pleasanton address. 11 The Nevada Supreme Court rejected Dozier’s challenge to the sufficiency of the 12 evidence on appeal: 13 First, Dozier contends that insufficient evidence was adduced at trial to 14 support his convictions for robbery and burglary. The standard of review 15 for a challenge to the sufficiency of the evidence to support a criminal conviction is “‘whether, after viewing the evidence in the light most 16 favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” McNair v. 17 State, 825 P.2d 571, 573 (Nev. 1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 18 19 Here, victims Demissie Kelemework and Mulunesh Gutema both testified that at about 10:15 pm on May 25, 2002, a man with a gun 20 entered their El Ray Motel room and ordered them to be quiet and to give him whatever they had. They were scared and gave the man their leather 21 fanny packs, each of which contained several hundred dollars. The man also took a small gift bag that belonged to a black female friend of theirs 22 from Pleasanton, California. The man packed the things he was taking into 23 a red traveling bag with a black strap. Kelemework described the man as a 30 to 40-year-old black male, well-shaven, and dressed in nice clothes. 24 Gutema described the man as a black male with a clean-shaven head. Neither woman was 100 percent sure that Dozier was the robber. 25 Reno Police Officer Thomas Mueller testified that, at about 10:50 pm 26 on May 25, 2002, he was called to the area of The Sands Casino 27 regarding a robbery that occurred at the El Ray Motel. He stated that the victims described the robber as a clean-shaven black male, 30 to 40 years 1 of age, who had a shaven head, was dressed in a black top and black pants, and was armed with a black pistol. 2 3 Katherine Stewart, Dozier's former girlfriend, testified that on May 25, 2002, she drove from Concord, California to Reno to visit Dozier. She was 4 tired and they did not have money for a hotel room, so they parked by The Sands and Sundowner sometime after nightfall and Stewart slept in the 5 car. Dozier, however, wanted to go to the casinos and do some hustling. He got out of the car, opened and closed the trunk, and left. Stewart knew 6 that Dozier's handgun was in the trunk. When Dozier returned, he had a 7 red canvas bag with a black strap, which Stewart described as "like a gym bag." Dozier was excited, sweating, and wanted to leave. They drove from 8 Reno to Sparks where they got a hotel room. Dozier dumped the contents of the red bag onto the bed. They included a small gift bag, a leather fanny 9 pack, a purse, and $200.00. Stewart also saw a California driver's license; it had a picture of black woman and listed a Pleasanton address. Stewart 10 stated that Dozier was dressed in a black leather jacket, black T-shirt, dark 11 Levi's, and black boots. 12 We conclude that the jury could reasonably infer from the circumstantial evidence presented at trial that Dozier committed the 13 crimes of robbery and burglary. It is for the jury to determine the weight and credibility to give conflicting testimony, and the jury's verdict will not 14 be disturbed on appeal where, as here, sufficient evidence supports the 15 verdict. 16 Second, Dozier claims that insufficient evidence was adduced at trial to show he used a deadly weapon or handgun. However, both Kelemework 17 and Gutema testified that the robber had a big black gun, which they indicated was about a foot long. And Stewart testified that she had actually 18 handled Dozier's handgun, it was a black revolver about a foot long, and it 19 was in Dozier's suitcase in the trunk of her car on the night of the robbery. We conclude that a jury could reasonably infer from this testimony that 20 Dozier used a handgun to commit robbery, and that there is sufficient evidence to support the jury's verdict. 21 22 Exh. 56, pp. 1-4. Dozier argues that the Nevada Supreme Court ignored Stewart’s 23 motivation to lie because she was angry with him over taking her car (ECF No. 54, pp. 24 4-7). But it is up to the jury to weigh credibility, and the credibility of witnesses is 25 generally beyond the scope of a review of the sufficiency of the evidence. Schlup, 513 26 U.S. at 330. Dozier has not shown that no rational trier of fact could have found proof of 27 guilt beyond a reasonable doubt. Jackson, 443 U.S. at 324. He has failed to 1 to, or involved an unreasonable application of, clearly established U.S. Supreme Court 2 law, or was based on an unreasonable determination of the facts in light of the evidence 3 presented in the state court proceeding. 28 U.S.C. § 2254(d). Accordingly, Dozier is 4 not entitled to relief on ground 1. 5 Ground 3 6 Dozier contends that his sentence for the deadly weapon enhancement exceeded 7 the statutory limitation and violated his Eighth Amendment right to be free from cruel 8 and unusual punishment (ECF No. 6, p. 7). While not entirely clear, Dozier appears to 9 also assert that his trial counsel was ineffective for failing to object to the sentence 10 imposed at the sentencing hearing. Id. 11 Respondents argue that neither claim was properly exhausted as a federal 12 constitutional claim in state court (ECF No. 53, pp. 11-13). As these claims fail on the 13 merits even under de novo review, the court need not address the exhaustion issue. 14 See Jones v. Ryan, 691 F.3d 1093, 1101 n.2 (9th Cir. 2012). 15 “The Eighth Amendment does not require strict proportionality between crime and 16 sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to 17 the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring); 18 see, e.g., Solem v. Helm, 463 U.S. 277, 303 (1983) (holding that a sentence of life 19 imprisonment without the possibility of parole for seventh nonviolent felony violates 20 Eighth Amendment). “[O]utside the context of capital punishment, successful challenges 21 to the proportionality of particular sentences will be exceedingly rare.” Id. at 289- 90. For 22 purposes of federal habeas review, under 28 U.S.C. § 2254(d)(1), “[a] gross 23 proportionality principle is applicable to sentences for terms of years.” Lockyer v. 24 Andrade, 538 U.S. 63, 72 (2003). Thus, the federal proportionality analysis comes into 25 play “only in the rare case in which a threshold comparison of the crime committed and 26 the sentence imposed leads to an inference of gross disproportionality.” Harmelin, 501 27 U.S. at 1005. 1 The state district court sentenced Dozier to 72 to 180 months on each of the two 2 robbery with a deadly weapon counts, with an equal and consecutive term for the 3 deadly weapon enhancement on each of the two counts, count 1 and 2 to run 4 consecutively. Exh. 36, pp. 24. The court sentenced him to 72 to 180 months on the 5 burglary count, to run concurrently. Id. 6 The Nevada Supreme Court rejected this claim: 7 Third, Dozier contends that the district court improperly applied the 8 deadly weapon enhancement to his robbery sentences. He argues that 9 because the deadly weapon enhancement must be "equal to and in addition to the term of imprisonment prescribed by statute for the crime" 10 (NRS 193.165(1)) and that the term of imprisonment prescribed by statute for the crime of robbery is 2 to 15 years, the district court erred when it 11 sentenced him to an equal and additional term of 6 to 15 years. However, our review of the record reveals that the district court properly sentenced 12 Dozier for his robbery convictions and correctly enhanced the sentences 13 with equal and consecutive terms of imprisonment for the use of a deadly weapon. The district court imposed enhancements that fell within the 14 sentencing limits prescribed by NRS 200.380(2) as required by NRS 193.165(1). Accordingly, we conclude that the district court did not err. 15 Exh. 56, p. 4. Respondents point out that Dozier did not invoke the Eighth 16 Amendment in his direct appeal (ECF No. 53, pp. 11), though he did argue that his 17 sentence constituted cruel and unusual punishment. In any event, the Nevada statute 18 proscribes that robbery is punishable by a minimum term of 2 years and a maximum 19 term of 15 years. NRS 200.380(2). The state district court sentenced him on robbery 20 with a deadly weapon and burglary counts to terms well within the statutory parameters. 21 A comparison of the crimes committed and the sentences imposed certainly does not 22 give rise to an inference of gross disproportionality here. Harmelin, 501 U.S. at 1005. 23 As to whether Dozier’s counsel was ineffective for failing to object to the sentence at 24 the sentencing hearing, ineffective assistance of counsel (IAC) claims are governed by 25 the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In 26 Strickland, the Supreme Court held that a petitioner claiming ineffective assistance of 27 counsel has the burden of demonstrating that (1) the attorney made errors so serious 1 that he or she was not functioning as the “counsel” guaranteed by the Sixth 2 Amendment, and (2) that the deficient performance prejudiced the defense. Williams, 3 529 U.S. at 390-91 (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the 4 defendant must show that counsel’s representation fell below an objective standard of 5 reasonableness. Id. To establish prejudice, the defendant must show that there is a 6 reasonable probability that, but for counsel’s unprofessional errors, the result of the 7 proceeding would have been different. Id. A reasonable probability is “probability 8 sufficient to undermine confidence in the outcome.” Id. Additionally, any review of the 9 attorney’s performance must be “highly deferential” and must adopt counsel’s 10 perspective at the time of the challenged conduct, in order to avoid the distorting effects 11 of hindsight. Strickland, 466 U.S. at 689. It is the petitioner’s burden to overcome the 12 presumption that counsel’s actions might be considered sound trial strategy. Id. 13 Ineffective assistance of counsel under Strickland requires a showing of deficient 14 performance of counsel resulting in prejudice, “with performance being measured 15 against an objective standard of reasonableness, . . . under prevailing professional 16 norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations 17 omitted). When the ineffective assistance of counsel claim is based on a challenge to a 18 guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that 19 there is a reasonable probability that, but for counsel’s errors, he would not have 20 pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 21 59 (1985). 22 When pronouncing the sentences, the court explained that it followed the 23 recommendation of the Division of Parole and Probation, that it considered Dozier’s 24 criminal history, that armed robbery is an extraordinarily dangerous and violent offense 25 and that the victims will never be free from the trauma that was inflicted. Exh. 36, pp. 26 26-27. Dozier has not shown that there was a reasonable probability of a different 27 1 outcome if counsel had objected to the sentence imposed at the time of the sentencing 2 hearing. Both claims in ground 3 are, therefore, denied. 3 Thus, the petition is denied in its entirety. 4 IV. Certificate of Appealability 5 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 6 Governing Section 2254 Cases requires this court to issue or deny a certificate of 7 appealability (COA). Accordingly, the court has sua sponte evaluated the claims within 8 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 9 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 10 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has 11 made a substantial showing of the denial of a constitutional right." With respect to 12 claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists 13 would find the district court's assessment of the constitutional claims debatable or 14 wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 15 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable 16 jurists could debate (1) whether the petition states a valid claim of the denial of a 17 constitutional right and (2) whether the court's procedural ruling was correct. Id. 18 Having reviewed its determinations and rulings in adjudicating Dozier’s petition, the 19 court finds that none of those rulings meets the Slack standard. The court therefore 20 declines to issue a certificate of appealability for its resolution of any of Dozier’s claims. 21 22 23 24 25 26 27 ' V. Conclusion 2 IT IS THEREFORE ORDERED that the petition (ECF No. 6) is DENIED in its 8 entirety. 4 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. ° IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and 6 close this case. 8 DATED: 11 December 2019. hat 9 Aa KENT J. DAWSON 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12