Leyva v. Ayers

MEMORANDUM ^*

Hector Sanchez Leyva appeals the denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. He was convicted in 1996 of twenty-two counts of lewd acts with a child under the age of fourteen in violation of California Penal Code § 288, which he challenges on the ground that one of two prior convictions for sex crimes used to enhance his sentence was unconstitutional. We affirm.

Leyva’s federal petition is governed by 28 U.S.C. § 2254 as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) because it was filed after April 24, 1996. Under AEDPA, habeas relief is not available unless the state court decision is contrary to, or involved an unreasonable application of, clearly established Supreme Court holdings at the time the state court decision was rendered and in light of evidence presented in the state court proceeding. 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Garvin v. Farmon, 258 F.3d 951, 954 (9th Cir.2001) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

Levya’s sentence was enhanced in part for a 1958 rape conviction in the state of Nevada. He raised the same claim raised here in a petition for post-conviction relief in the state district court in Nevada in 1970. After hearing testimony from Leyva and the trial judge who took Leyva’s plea, the state court found that Leyva knew the nature of the proceedings against him, the nature of the crime charged, and the consequences of what was happening, and that he knowingly and intelligently waived counsel. The Nevada decision was not contrary to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which the court applied, nor was its conclusion unreasonable given the trial judge’s testimony that was credited by the post-conviction court. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (looking to “particular facts and circumstances” of each case to determine if waiver were intelligent); cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (reversing denial of habeas petition to review conviction on plea of guilty entered without advice of counsel for evidentiary hearing on whether plea was intelligently5 made); Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957) (reversing denial of motion for new trial on account of new evidence not known to the trial judge).

AFFIRMED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.