Opinion
3:21-cv-00005-MMD-WGC
06-10-2021
HARVEY MCDANIELS, Petitioner, v. NDOC WARDEN GITTERE, et al, Respondents.
AARON D.FORD ATTORNEY GENERAL BY: TRISHA CHAPMAN TRISHA CHAPMAN (BAR. NO. 12716) DEPUTY ATTORNEY GENERAL M. LANDRETH AN EMPLOYEE OF THE OFFICE OF THE ATTORNEY GENERAL
AARON D.FORD
ATTORNEY GENERAL
BY: TRISHA CHAPMAN
TRISHA CHAPMAN (BAR. NO. 12716) DEPUTY ATTORNEY GENERAL
M. LANDRETH AN EMPLOYEE OF THE OFFICE OF THE ATTORNEY GENERAL
ANSWER TO PETITION FOR WRIT OF
HABEAS CORPUS
(ECF NO. 5)
AARON D. FORD Attorney General Trisha Chapman (Bar. No. 12716) Deputy Attorney General
Respondents answer Petitioner Harvey McDaniels' Petition for Writ of Habeas Corpus (ECF No. 5). This answer is based on the following points and authorities, together with all other pleadings and the index of exhibits filed concurrently herewith.
MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
The State charged Petitioner, Harvey McDaniels (McDaniels) by way of amended information with one count of voluntary manslaughter with use of a deadly weapon for the death of Dwayne Bell. While the underlying facts are not at issue, the following is a brief synopsis of the incident that occurred on April 8, 2014:
McDaniels and his companion were asleep in his room when she awoke to a noise. Exhibit 1 at 5; PHT at 17-19. Both parties jumped out of bed and McDaniels, an ex-felon, grabbed a gun. Id. at 6; PHT at 21:18-23. McDaniels called out but no one answered. Id; PHT at 22:3-7. McDaniels fired two shots towards the bedroom door. Id.; PHT at 23:15-21. McDaniels continued to call out as he proceeded down the hallway and into the living room where he found the victim, Dwayne Bell. Id; PHT at 24:17-25. McDaniels fired a third shot at Mr. Bell. Id.; PHT at 25:1-12. Mr. Bell later succumbed to his injuries and died. Exhibit 30 at 15:2-6.
Preliminary Hearing Transcript (PHT).
PROCEDURAL HISTORY
I. McDaniels Enters an Alford Plea.
On August 8, 2017, McDaniels pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) to one count of voluntary manslaughter with use of a deadly weapon. Exhibit 2. The relevant portions of McDaniels' guilty plea agreement are as follows:
Both parties stipulate to a sentence of two (2) to five (5) years in Nevada Department of Corrections (NDOC) for the Voluntary Manslaughter plus a consecutive term of one (1) to three (3) years NOC for the Deadly Weapon enhancement. Additionally, the State agrees not to refer the case to the federal government for prosecution. Finally, this is a conditional plea, if the Court fails to follow the negotiation the Defendant may withdraw his plea and proceed to trial.
Exhibit 25 at 1:22-27.
I understand that, if I fail to interview with the Department of Parole and Probation (P&P), fail to appear at any subsequent hearings in this case, or an independent magistrate, by affidavit review, confirms probable cause against me for new criminal charges including reckless driving or DUI, but excluding minor traffic violations, the State will have the unqualified right to argue for any legal sentence and term of confinement allowable for the crime(s) to which I am pleading guilty...Id. at 2:4-12 (emphasis added).
It is undisputed that McDaniels failed to interview with P&P. Exhibit 27 at 6. As a result of his failure to comply with the terms of the agreement, the prosecution regained the right to argue and argued for two, consecutive 4-10-year terms. Exhibit 30 at 12:8-9. Defense Counsel conceded that the prosecution regained the right to argue but submitted that McDaniels maintained his right to withdraw his plea should the court impose a different sentence than what he stipulated to. Id. at 11:1-14. The court disagreed and sentenced McDaniels to two consecutive, 2-10 years terms for voluntary manslaughter and for the deadly weapon enhancement - longer than the original agreement, but still less than what the prosecution requested. Exhibit 32. The court entered the Judgment of Conviction on January 24, 2018. Id.
A review of P&P's interview sign-in log was completed on September 7, 2017, for the months of August 2017 and September 2017 and no record of McDaniels was found nor was he located at any local detention facilities. Exhibit 27 at 6.
II. McDaniels Files an Unsuccessful Direct Appeal.
With the assistance of counsel, McDaniels appealed his conviction to the Nevada Court of Appeals. Exhibit 35. Relevant to his federal petition, McDaniels challenged the District Court's rejection of the stipulated sentence "without affording Appellant the opportunity to withdraw his plea as contemplated by the conditional guilty plea agreement." Exhibit 48. The Nevada Court of Appeals affirmed McDaniels' conviction finding that the sentence imposed was within the parameters provided by the relevant statutes noting that McDaniels failed to show the district court relied on impalpable or highly suspect evidence. Exhibit 57. In addition, assuming the conditional nature of McDaniels plea survived his failure to interview with P&P, the Court of Appeals concluded that the provision that he "may withdraw his plea" did not impose a duty on the district court to create an opportunity for him to do so noting he had more than one month from sentencing to entry of conviction and made no efforts to withdraw his plea. Id. at 2.
III. McDaniels Unsuccessfully Challenges His Conviction During Post-Conviction Proceedings.
McDaniels filed & pro se state petition for writ of habeas corpus. Exhibit 61. Relevant to his federal petition, McDaniels asserted the following claims:
1. Counsel was ineffective in failing to file a motion to withdraw guilty plea when the district court imposed a harsher sentence than what was stipulated by the plea agreement in violation of the sixth and fourteenth amendment.
2. McDaniels' plea was not knowingly and voluntarily entered as he was not canvassed on the state regaining the right to argue for a sentence greater than that stipulated by the plea agreement if a violation of the agreement occurred which is a direct consequence of the plea in violation of the fourteenth amendment U.S. constitution.Id.
The state court denied McDaniels' petition on the merits and McDaniels appealed. Exhibit 64 and Exhibit 66. Relevant to his federal petition, McDaniels asserted the following errors:
1. Counsel failed to prepare a written motion to compel the district court to allow McDaniels to withdraw his plea; and
2. The District Court erred "because the consequences of the plea, the waiver of the rights, the voluntariness of the plea are not binding by any case law or rules that support a defendant if for any reason decides to withdraw his plea of guilt."
Exhibit 69.
The Nevada Supreme Court affirmed the district court's order denying McDaniels' petition. Exhibit 72.
The Nevada Supreme Court determined it was unnecessary for the prosecution to respond and issued its decision based on McDaniels' pro se brief and the record. Exhibit 72 at 1.
IV. McDaniels Files His Federal Petition.
On January 4, 2021, McDaniels dispatched his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2254, in which he asserted the following grounds for relief:
1. Counsel was ineffective in failing to file a motion to withdraw guilty plea when the district court imposed a harsher sentence than what was stipulated by the plea agreement in violation of the sixth and fourteenth amendment.
2. McDaniels' plea was not knowingly and voluntarily entered as he was not canvassed on the state regaining the right to argue for a sentence greater than that stipulated by the plea agreement if a violation of the agreement occurred which is a direct consequence of the plea in violation of the fourteenth amendment U.S. constitution.ECF No. 5 at 16 and 25.
Respondents now answer McDaniels' federal petition and respectfully request this Court deny relief.
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA), governs this action. AEDPA prevents a federal court from granting relief based on any claim "adjudicated on the merits" in state court, unless the petitioner can establish that the state court adjudication:
(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 decision is "contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court 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." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). If no Supreme Court authority squarely addresses the question and provides a clear answer to it when the state court adjudicated the petitioner's claim, then the state court's decision cannot contradict or unreasonably apply clearly established federal law - and § 2254(d)(1) bars habeas corpus relief on the claim. Carey v. Musladin, 549 U.S. 70, 76-77 (2006) (if habeas relief depends upon the resolution of an open question in Supreme Court jurisprudence, habeas relief is precluded).
The Supreme Court has cautioned the lower courts against "framing our precedents at such a high level of generality" regarding clearly established Supreme Court precedent. Nevada v. Jackson, 569 U.S. 505, 512 (2013). A circuit court may not consult its own precedents, rather than those of the Supreme Court, in assessing a habeas claim brought pursuant to § 2254. White v. Woodall, 572 U.S. 415, 420 n.2 (2014). If there are any other reasonable inferences that can be drawn from the relevant precedent, the principle is not clearly established under § 2254(d). Id. at 1702-05.
"Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Taylor, 529 U.S. at 412-13.
The state trial and appellate courts' factual findings are presumed to be correct unless rebutted by the petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In Pinholster, the Court reasoned that the "backward4ooking language" present in § 2254(d)(1) "requires an examination of the state-court decision at the time it was made," and, therefore, the record under review must be "limited to the record in existence at that same time, i.e., the record before the state court." Id. at 182.
Section 2254(d) created a "highly deferential standard for evaluating state court rulings, which demands that state-court decisions be given the benefit of the doubt" Pinholster, 563 U.S. at 181 quoting Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam). The power of the federal courts to grant deference under 28 U.S.C. § 2254(d) "does not require citation of our cases - indeed, it does not even require awareness of our cases, so long as neither the original reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (emphasis in original).
The habeas writ is not available just because a federal court disagrees with the state court decision. Taylor, 529 U.S. at 410-11. Rather, "a [federal] habeas court must determine what arguments or theories supported... the state court's decision; and then it must ask whether it is possible fair-minded jurists would disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Harrington v. Richter, 562 U.S. 86, 101 (2011). To obtain habeas relief, the petitioner must show that the state's highest court's rejection of the petitioner's claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement." Id. at 103.
ARGUMENT
I. Ground 1: McDaniels Received Constitutionally Effective Assistance of Counsel.
In ground 1, McDaniels claims that counsel was ineffective for not moving to withdraw his plea when the district court imposed a harsher sentence than what was stipulated by the plea agreement. ECF No. 5 at 16. McDaniels' claim arises out of a dispute involving the conditions of his guilty plea agreement. Id. at 18. The parties agreed "if the Court fails to follow the negotiation the Defendant may withdraw his plea and proceed to trial." Exhibit 25 at 1:25-27. However, McDaniels also agreed that if he failed to interview with P&P, "the State will have an unqualified right to argue for any legal sentence and term of confinement allowable for the crime(s) to which I am pleading guilty to." Id. at 2:4-12. McDaniels violated the terms of the guilty plea agreement when he failed to comply with the mandatory condition to interview with P&P which rendered the conditional nature of his plea agreement void.
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness and that, but for counsel's errors, the results would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the defendant must show that counsel's performance was deficient. Id. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Id. Second, the defendant must show that the deficient performance prejudiced the defense. Id. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. Strickland requires this Court to presume that counsel exercised reasoned professional judgment in litigating McDaniels' case, and it is McDaniels' burden to overcome that presumption. Id. at 687-91.
When a petitioner's conviction is the result of a guilty plea, like McDaniels, the Strickland prejudice prong requires a showing by the petitioner "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 (1985). Failure by petitioner to prove prejudice is sufficient to deny the claim. Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990).
Under AEDPA, the petitioner must show that the state court "applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. 685, 698-99 (2002). In fact, the Supreme Court described this burden as "doubly" difficult to overcome:
The standards created by Strickland and § 2254(d) are both highly deferential...and when the two apply in tandem, review is "doubly" so...The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.Richter, 562 U.S. at 105 (internal citations omitted). Federal habeas review of an ineffective assistance of counsel claim is limited to the record before the state court that adjudicated the claim on the merits. Cullenv. Pinholster, 563 U.S. 170, 182-85 (2011).
The petitioner has the burden to show there is no reasonable argument he received effective assistance of counsel under Strickland's deferential standard. Richter, 562 U.S. at 105. There are countless ways to provide effective assistance in any given case. "Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689. As a result, "[t]he question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Richter, 562 U.S. at 105 (internal quotations and citation omitted).
Surmounting Strickland's high bar is never an easy task. Padilla v. Kentucky, 559 U.S. 356, 371 (2010). With these legal standards in mind, Respondents address ground 1 of McDaniels' petition.
A. The Nevada Supreme Court reasonably rejected this claim.
The Supreme Court of Nevada considered McDaniels allegation that counsel was ineffective for not moving to withdraw his plea and reasonably rejected this claim on the merits:
McDaniels finally argues that counsel should have filed a written motion to withdraw his guilty plea and that his plea ceased to be voluntary when he was not permitted to withdraw it after the district court imposed a more severe sentence than the stipulated term. McDaniels has not demonstrated deficient performance or prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Counsel argued at sentencing for a withdrawal of McDaniels plea, and the district court rej ected counsel's arguments. McDaniels has not identified what additional argument counsel should have raised in a written motion and has not shown that such a motion would have been meritorious. The district court therefore did not err in denying this claim without an evidentiary hearing. See Ennis v. Stale, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006) ("Trial counsel need not lodge futile objections to avoid ineffective assistance of counsel claims.").
Exhibit 72 at 2-3.
The rejection of this claim was neither an unreasonable application of clearly established federal law, nor an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). The Nevada Supreme Court identified the correct clearly established federal law, and reasonably applied the appropriate standard to McDaniels' claim. McDaniels fails to overcome the substantial deference demanded by AEDPA.
B. Counsel was not deficient.
The Nevada Supreme Court correctly determined that McDaniels' claim of deficient performance fails because counsel in fact argued for McDaniels' right to withdraw his plea. This was not an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(2).
Prior to sentencing, counsel filed a sentencing memorandum arguing that McDaniels' failure to interview with P&P was of no consequence and that McDaniels retained the right to withdraw his plea should the court impose a different sentence than what was contemplated in the plea agreement. Exhibit 29. Counsel also spent significant time at sentencing reinforcing these arguments. Exhibit 30. Specifically, counsel remained adamant that regardless of McDaniels' failure to interview with P&P, McDaniels retained the conditional nature of his plea: ///
COUNSEL: Your Honor, I believe that she may regain the right to argue, however, Your Honor, that doesn't change the plea agreement that my client gets the opportunity to - it was - doesn't receive the conditional plea to withdraw his plea.
Exhibit 30 at 2:21-24. Even after the court determined that the prosecution regained the right to argue, counsel still argued "that does not change the conditional portion of it [the plea]." Id. at 9:1-2. The court disagreed, and went on to explain:
COURT: The way I read this is, this is a conditional plea if the Court fails to follow the negotiation. But the State is only bound by the negotiation if the Defendant interviews which he didn't do...this is a, you know, essentially a contract and those are the terms.Id. at 9:17-24. Counsel made it clear that he did not agree with the court's interpretation of the guilty plea agreement:
COUNSEL: And, Your Honor, let me just say for the record that I disagree, and I've been involved with the -I've seen over the years these Guilty Plea Agreements change many times.Id. at 10:8-10. Counsel further explained:
COUNSEL: Correct. And so, Your Honor - and we have had many cases where a person does not report. I think this is the first time - because it is rare we do conditional pleas where we've had the issue of, okay, does he lose the substantive part of his agreement which is that it's a conditional plea just because of the minor procedure issue as to whether or not, if he reports, do they gain the right to argue. I believe she should gain the full right to argue in terms of the length of the sentence - but he does not have the - he still has a condition.Id. at 10:21-25 and 11:1-5.
As the Supreme Court of Nevada reasonably explained, Counsel vigorously argued that McDaniels retained his right to withdraw his plea, but the state court rejected his arguments. Exhibit 72 at 2. McDaniels failed to identify what additional argument counsel could or should have raised in a written motion that he did not assert in the sentencing memorandum or in the argument at sentencing. And based on the court's express rejection of counsel's argument, McDaniels cannot demonstrate that a written motion would have been meritorious. Because counsel sought to allow McDaniels to withdraw his plea in the district court, it was not unreasonable for the Supreme Court of Nevada to conclude that McDaniels failed to demonstrate how objectively reasonable counsel would have raised further arguments on the issue.
Accordingly, the Supreme Court of Nevada's decision was consistent with clearly established federal law and McDaniels fails to demonstrate that it was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
C. McDaniels fails to demonstrate prejudice.
To obtain relief in Ground 1, McDaniels must demonstrate both that counsel was deficient, and that he was prejudiced. As set forth above, McDaniels cannot demonstrate that his counsel was deficient. However, even if trial counsel should have done more, McDaniels cannot meet his burden to demonstrate prejudice. Because McDaniels pleaded guilty, McDaniels must demonstrate that but for counsel's errors, he would have pled not guilty and insisted on going to trial. Hill, 474 U.S. at 52. McDaniels cannot point to anything that would support the conclusion that he would have rejected the significant benefits he received through the plea deal and proceeded with trial.
At trial, McDaniels faced a possible sentence of 4-10 years for voluntary manslaughter and an additional consecutive term of 1-10 years for the deadly weapon enhancement. See Nev. Rev. Stat. 200.080 and Nev. Rev. Stat. 193.165. This means that McDaniels would be exposed to a potential maximum sentence of 8-20 years in prison if the sentencing court decided to sentence him to an equal term for the weapon enhancement. That potential exposure was significantly more time than what counsel negotiated on McDaniels' behalf. Exhibit 25. In fact, counsel reduced McDaniels' prison exposure by more than half. Id. Specifically, counsel negotiated a sentence of 2-5 years on the voluntary manslaughter charge and a consecutive 1-3 years for the deadly weapon enhancement, for a total sentence of 3-8 years. Id.
The record reflects that the reduced exposure was a factor in McDaniels' decision to plead guilty. During his plea canvass, the state court specifically asked him, "is one of the reasons you've decided to do this to avoid the possible harsher penalty if you are convicted of the original charges against you?" and McDaniels said, "Yes, ma'am." Exhibit 26 at 7:8-11. The court also asked him if he entered a plea because he understood "that the jury may not see the facts your way and could accept the version of events in a light more favorable to the State," to which he also responded, "Yes, ma'am." Id. at 7:13-15. Based on his own representations, it appears McDaniels had every intention of sealing the benefit of a reduced sentence when he signed the guilty plea agreement and did not intend to proceed to trial. Counsel performed reasonably by trying to safeguard McDaniels' benefit by adding in the conditional clause that allowed him to withdraw his plea should the court not follow the parties' recommendation. Exhibit 25.
The reason McDaniels was not able to invoke the conditional clause and withdraw his plea was due to his own failure to comply with the terms of his agreement - not counsel's performance. McDaniels violated the terms of the guilty plea agreement when he failed to abide by the mandatory condition to interview with P&P. Id. at 2:4-12. McDaniels fails to demonstrate prejudice because his purported desire to rej ect the plea was not "but for" counsel's actions - the fact that he lost the substantial benefits counsel obtained on his behalf was entirely the result of McDaniels' own actions. The state court explained that the guilty plea agreement was a contract between McDaniels and the prosecution and that "the State is only bound by the negotiation if the Defendant interviews which he didn't do." Exhibit 30 at 9:17-24. And as set forth above, counsel tried to ensure that McDaniels could withdraw the plea despite McDaniels' failure to comply with its terms. It was McDaniels' own conduct that violated the terms of the guilty plea agreement, not counsel's alleged errors. McDaniels cannot show prejudice.
The court noted that, in order to determine the appropriateness of a sentence, it would base its sentencing decision on the instant offense, prior convictions and whether McDaniels had stayed out of trouble while he was out of custody, not on McDaniels' failure to appear for an interview with P&P. Exhibit 30 at 11:17-23. Counsel did everything he could to try to retain McDaniels' ability to withdraw the plea, but the fact remains that McDaniels' failure to comply with the terms of the agreement is why he was unable to withdraw the plea when the court ultimately decided not follow the negotiation.
Accordingly, McDaniels cannot meet either prong under Strickland or Hill, and Ground 1 should be denied.
II. Ground 2: McDaniels Entered a Knowing, Intelligent, and Voluntary Alford Plea.
In Ground 2, McDaniels alleges his plea was not knowing and voluntary because he was not canvassed on the state regaining the right to argue for a greater sentence than what he stipulated to if he violated the terms of the guilty plea agreement-specifically when he failed to interview with P&P. ECF No. 5 at 25.
The United States Supreme Court has "strictly limited the circumstances under which a guilty plea may be attacked on collateral review." Bousley v. U.S., 523 U.S. 614, 621 (1998). This is because representations by the defendant, his lawyer, the prosecutor, and the court constitute a formidable barrier in subsequent collateral proceedings. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). A valid guilty plea is one that is both knowing and voluntary. Boykin v. Alabama, 395 U.S. 238, 242 (1969).
A. The Nevada Court of Appeals reasonably upheld McDaniels' plea.
McDaniels challenged the district court's decision to reject his stipulated sentence but the Nevada Court of Appeals reasonably affirmed his conviction and plea:
McDaniels contends the district court abused its discretion by rejecting the stipulated, conditional sentence. The district court has wide discretion in its sentencing decision. Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 490 (2009). We will not interfere with a sentence imposed by the district court that falls within the parameters of relevant sentencing statutes "[s]o long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence." Silks v. State, 92 Nev. 91, 94, 545P.2d 1159, 1161 (1976).
The sentence imposed is within the parameters provided by the relevant statutes. See NRS 193.165(1); NRS 200.080. And McDaniels does not allege the district court relied on impalpable or highly suspect evidence. Further, as McDaniels acknowledged that he understood during his plea canvass, the district court was not bound by the plea agreement. For these reasons, we conclude the district court did not abuse its discretion by sentencing McDaniels to terms in excess of those in the plea agreement.
Exhibit 57 at 1-2.
Subsequently, the Supreme Court of Nevada appropriately concluded that the doctrine of the law of the case precluded McDaniels from relitigating this claim:
Appellant Harvey Deandre McDaniels first argues that the district court should have allowed him to withdraw his guilty plea when the State argued for a more severe sentence than the parties had originally stipulated. The guilty plea agreement provided that the State would be relieved of its obligation to argue for the stipulated sentence if McDaniels failed to interview with the Department of Parole and Probation, as McDaniels failed to do. The Court of Appeals considered and rejected this claim on direct appeal. McDaniels v. State, Docket No. 75074-COA (Order of Affirmance, July 17, 2019). The doctrine of the law of the case prevents re-litigation of this claim. SeeHallv. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). The district court therefore did not err in denying this claim without an evidentiary hearing. See Nika v. State, 124 Nev. 1272, 1300-01, 198 P.3d 839, 858 (2008) (providing that a petitioner is entitled to an evidentiary hearing when the claims asserted are supported by specific factual allegations that are not belied or repelled by the record and that, if true, would entitle the petitioner to relief).Exhibit 72 at 1-2.
The rejection of this claim was neither an unreasonable application of clearly established federal law, nor an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).
B. The state court conducted a thorough plea canvass.
To determine whether a plea is valid is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill, 474 U.S. at 56 quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970). Where a defendant was represented by counsel during the plea process, and enters a plea based on advice from counsel, the voluntariness of the plea depends on whether the advice "was within the range of competence demanded of attorneys in criminal cases," not based on whether the court would retrospectively consider counsel's advice to be right or wrong. McMann v. Richardson, 397 U.S. 759, 771 (1970). "It may be appropriate to presume that in most cases, defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit." Henderson, 426 U.S. at 647.
Contrary to McDaniels' allegations, he entered a knowing and voluntary plea. The court conducted a thorough plea canvass and ensured that McDaniels understood the terms his guilty plea guilty agreement:
COURT: All right. And, Mr. McDaniels, as I said I must be satisfied that you're doing this freely and voluntarily. Are you doing this freely and voluntarily?
DEFENDANT: Yes, ma'am.
COURT: Other than what's contained in the written plea of guilty, have any promises or threats been made to induce you to enter your plea?
DEFENDANT: No, ma'am
COURT: All right. Prior to signing the written plea of guilty, did you read it?
DEFENDANT: Yes, ma'am.
COURT: Did you understand everything contained in the written plea of guilty?
DEFENDANT: Yes, ma'am.
COURT: All right. And did you have - also have an opportunity to read the Amended Information charging you with the felony crime of voluntary manslaughter with use of a deadly weapon?
DEFENDANT: Yes, ma'am.
COURT: And did you understand everything contained in that Amended Information?
DEFENDANT: Yes, ma'am.
COURT: And did you have a full and ample opportunity to discuss your plea of guilty as well as the charge to which you're pleading guilty with your lawyer, Mr. Winder, and your other lawyer, Mr. Dorman?
DEFENDANT: Yes, ma'am.
COURT: Okay. And do you feel like your lawyers spent enough time with you explaining everything and going over everything in your case?
DEFENDANT: Yes, ma'am.
COURT: Okay. And did your lawyers answer all your questions and address all of your concerns to your satisfaction?
DEFENDANT: Yes, ma'am.
COURT: And is it your desire today to enter a plea of guilty pursuant to the Alford decision wherein you will deny the facts constituting the offense but the State has the opportunity to state for the what facts the State would prove if this matter were to proceed to trial?
DEFENDANT: Yes, ma'am
Exhibit 26 at 3:13-25 and 4:1-22.
This exchange illustrates that McDaniels not only had the opportunity to review the terms of the guilty plea agreement but that he understood them as well. It also shows that he had ample opportunity to consult with his counsel and address any questions or concerns. Only after the court confirmed that McDaniels understood the plea was McDaniels allowed to proceed forward with his plea.
After McDaniels demonstrated his understanding of the guilty plea agreement, the court explicitly advised him that sentencing was within the court's sole discretion:
COUNSEL: And, Your Honor - and you didn't read for the record that the parties have stipulated to -
COURT: I see that. That is actually part of the record in the Guilty Plea
Agreement, but I will state it on the record. The parties have stipulated to a sentence to a two to five years on the voluntary manslaughter plus a consecutive term of one to three years for the weapons enhancement. Both sides are going to recommend that to the Court. And you understand that the matter of sentencing is still strictly up to me; do you understand that?
DEFENDANT: Yeah.
COURT: But both sides will try to convince me to give you that; do you understand that?
DEFENDANT: Yes, ma'am.
COURT: All right. Any questions?
DEFENDANT: No, ma'am.Id. at 7:25 and 8:2-14.
McDaniels sought clarification on whether the court had to accept the stipulated sentence. Id. at 8:18. The court again confirmed that sentencing was within its discretion and advised McDaniels of the "range of allowable punishment" that would result from his plea:
DEFENDANT: So, you said you don't have to accept -
COURT: No. I don't have to, but generally the Court follows the recommendation, but I'm not required to follow it. So, you understand that
I'm not required to do. Let's just say I get hit by a bus, God forbid, tomorrow. It could be another judge who is sentencing you and they can sentence you within the range of penalty which is a maximum of four to ten on the voluntary manslaughter; correct?
STATE: Correct.
COURT: And an additional one to ten for the weapons enhancement.
STATE: Correct.
COURT: All right. That's the range. Both sides are going to recommend that the Court give you a two to five on the voluntary manslaughter and a consecutive one to three for the deadly weapon enhancement.Id. at 8:18-25 and 9:1-7; see also U.S. exrel. Pebworth v. Conte, 489 F.2d 266, 268 (9th Cir. 1974).
The fact that McDaniels actively engaged the court regarding the details of his possible sentence range undermines his allegation that his plea was not knowing or voluntary. And, contrary to McDaniels' claims, the court did inform him that he had to interview with P&P:
COURT: All right. Make sure you go to P and P and get signed up. And when I say signed up I misspoke. And the interview for your Pre-Sentence Investigation Report.Id. at Mat 8:15-17.
COURT: All right. So, you got to stay out of trouble, you got to go to P and P; you got to be available for your lawyer when he wants to contact you, and you have to come back to Court on the date we gave you. All right. DEFENDANT: Okay.Id. at 10:6-10.
A review of McDaniels' plea canvass refutes any credible allegation that his plea was not knowing or voluntary. The record demonstrates both that the court took the time to ensure McDaniels understood the terms of the guilty plea agreement and that his attorney answered any questions and/or concerns to his satisfaction. It also evident that the court explained on more than one occasion that sentencing was within its sole discretion. Importantly, the record also demonstrates that McDaniels had the opportunity to engage the court and clarify any concerns he had. And, lastly, the court did inform McDaniels that he had to report to P&P for an interview. The fact that McDaniels subsequently failed to interview with P&P does not undermine the validity of his plea.
C. The state court did not have a duty to foresee McDaniels' failure to interview with P&P and explain all possible ramifications.
No clearly established federal law mandates that a trial court attempt to predict a defendant's conduct and the potential impact on his plea. Rather, due process is satisfied when a defendant receives notice of the true nature of the charges against him and is made aware that he is waiving the right against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. Henderson v. Morgan, 426 U.S. 637, 645 (1976); see also Boykin v. Alabama, 395 U.S. 238, 243 (1969).
Here, McDaniels knew the true nature of his charges because he acknowledged that he read and understood the amended information charging him with voluntary manslaughter with use of a deadly weapon. Exhibit 26 at 4:4-10. In addition, the court had a detailed discussion with McDaniels regarding the facts of the case and what the prosecution would have proven had the matter proceeded forward to trial. Id. at 5:9-25 and 6:1-25. Lastly, McDaniels acknowledged that he read and understood the guilty plea agreement which contained the rights he was giving up by not proceeding forward to trial. Id. at 3:23-25 and 4:1-3; see also Exhibit 25 at 4:21-28.
Despite being advised of his due process rights, McDaniels contends that the state court had a duty to inform him, at the time he entered his plea, that the state would regain the right to argue for any legal sentence should he fail to interview with P&P. ECF No. 5 at 29.
In determining the voluntariness and intelligence of a plea, a trial judge is under no obligation or duty to foresee an accused's future conduct and predict all possible ramifications thereof. Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988). In Torrey, Torrey entered a guilty plea to first degree murder. Id. at 234. As part of the plea bargain, Torrey was committed to the California Youth Authority for execution of his sentence. Id. After two years, Torrey was returned to court and resentenced to 25 years to life in state prison due to him being unamenable to Youth Authority Treatment. Id. at 235. This finding was based on his behavior post commitment and his attempt to purchase a gun through unauthorized use of the mail. Id.
Torrey challenged the state court's failure to advise him, at the time his plea was entered, that he could be resentenced to the maximum term for murder if the Youth Authority found that he was not amenable to treatment. Id. The court found that Torrey's return to court and resentencing was not a direct consequence of his plea but rather a collateral consequence. Id. The court reasoned that Torrey was informed of the maximum sentence he was facing and found that:
In determining the voluntariness of a plea and whether it has been made intelligently, the court cannot be required to foresee an accused's future conduct and to predict all possible alternative ramifications thereof. Appellant's failure to succeed under the original terms of his sentence was simply an indefinite possibility on which the trial judge had no duty to speculate.Id. at 236.
Similar to the conduct in Torrey, McDaniels failure to report and interview with P&P was his own future conduct that a court could not foresee. And like the court in Torrey, the court here was under no obligation to foresee McDaniels' future conduct and inform him of all possible consequences. Rather, the court was merely obligated to inform McDaniels of the maximum sentence he was facing, which it did. Torrey, 842 F.2d at 236; see also Exhibit 26 at 8:18-25 and 9:1-7.
Given that there is no clearly established federal law that requires the state court to inform McDaniels of the collateral consequences of his failure to interview with P&P, his claim must fail. Therefore, it was reasonable for the Nevada Court of Appeals to conclude that the state court had wide discretion in its sentencing decision and that McDaniels' sentence was within the parameters provided by statute. Exhibit 57 at 1-2. McDaniels' sentence was more severe as a result of his own failure to comply with the plea agreement, and that does not render his plea involuntary.
Ground 2 should be denied with prejudice.
CONCLUSION
To obtain habeas corpus, a prisoner must show that the state court's ruling on the claim presented was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Richter, 562 U.S. at 103. McDaniels does not come close to meeting this burden because there is no reasonable argument to support any of his claims, warranting denial of his Petition with prejudice.