Johnny Lee DAVIS, Petitioner-Appellant, v. George GRIGAS, Respondent-Appellee.
No. 05-15211.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 13, 2006. Filed April 10, 2006.
443 F.3d 1155
HALL, Senior Circuit Judge; Before HALL, SILVERMAN, and GRABER, Circuit Judges.
Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found Salazar guilty beyond a reasonable doubt of the essential elements of willfulness with respect to Counts 3 and 6 of the indictment. United States v. LeVeque, 283 F.3d 1098, 1102 (9th Cir.2002). First, Salazar acted intentionally in causing the destruction of INS documents. As one of the supervisors in charge of reducing the interfiling backlog, he directed his file room clerks to shred documents that should have been placed in the A-files. Salazar admitted in his written statement, composed only ten days after the last shredding incident, that he and his group had increased the pace of the shredding to the point where management should have realized that the documents were being shredded rather than being filed in their respective A-files.
Second, Salazar knew that he was acting unlawfully in causing the shredding of INS documents. Salazar admitted that had the Deputy Site Manager acted when she saw the abnormally high numbers in the production reports, “she could have prevented and stopped the shredding of Federal Documents,” and stated that he hoped “that at the end of this investigation the responsible people will be dealt with as the law indicates.” Salazar also told colleagues that he believed the shredding was unlawful. In addition, when first questioned by his superiors about the shredding, Salazar made false exculpatory statements. See United States v. Perkins, 937 F.2d 1397, 1402 (9th Cir.1991) (“false exculpatory statements ... properly could be considered as evidence of consciousness of guilt“). Therefore, we affirm Salazar‘s conviction.
IT IS SO ORDERED.
RAWLINSON, Circuit Judge, concurring:
I concur in the result.
Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the appellant.
Victor-Hugo Schulze, II, Senior Deputy Attorney General, Las Vegas, NV, for the appellee.
Johnny Lee Davis appeals the district court‘s denial of his
I. Facts and Procedural History
On September 10, 1997, Davis lured the mother of his two children to the desert outside of Las Vegas, Nevada, shot her six times, and left her for dead. Ultimately
At the request of his trial counsel, Jennifer Haight, Davis underwent a psychiatric evaluation to determine his competency to stand trial. The evaluator concluded that Davis was competent to stand trial. However, the evaluation report noted that Davis reported a rough past. He claimed to have begun using drugs and alcohol at the age of fourteen, and at the time of the evaluation admitted to still using both. Davis also reported two prior suicide attempts, stating that he had been “messed up in the head” since an accident that left him with severe head trauma at the age of two. He reportedly experienced auditory hallucinations for several years prior to the shooting, with voices telling him to kill and hurt people.
On March 4, 1998, Davis pleaded guilty, pursuant to a written plea agreement, to attempted murder with the use of a deadly weapon. The plea agreement specified a sentencing cap of six to fifteen years for attempted murder, with a separate but equal sentencing cap of six to fifteen years for the use of a deadly weapon enhancement.
Davis‘s sentencing hearing was held on April 22, 1998. The government argued that Davis should be sentenced to two fifteen-year terms, the high end of the sentencing cap stipulated to in the plea agreement. Davis‘s counsel, Haight, erroneously told the court that Davis had stipulated to two fifteen-year terms, when in fact he had only stipulated to what was in the written plea agreement: two six- to fifteen-year sentencing caps. Haight made no argument for a lower sentence and presented no mitigating evidence. The judge sentenced Davis to two consecutive fifteen-year terms.
After an untimely direct appeal was dismissed for lack of jurisdiction, and after Haight withdrew as his counsel, Davis filed a petition for habeas corpus in Nevada state court, alleging ineffective assistance of counsel and “manifest injustice involving the tribunal.” Davis argued that Haight was ineffective because she failed to investigate his psychological problems and failed to present mitigating evidence at sentencing. The state district court denied Davis‘s petition.
Davis appealed to the Nevada Supreme Court where, in addition to the ineffective assistance of counsel claim, he argued that the district court erred in denying his petition without conducting an evidentiary hearing to allow him to present the relevant mitigating evidence. The court dismissed Davis‘s appeal, holding that he failed to allege specific facts that would entitle him to relief. In its opinion, the Nevada Supreme Court also misstated the plea bargain—just as Haight had at Davis‘s sentencing hearing—stating that Davis had stipulated to two six- to fifteen-year sentences, when in fact Davis had only stipulated to two six- to fifteen-year sentencing caps.
On November 9, 2001, Davis filed his first amended petition for habeas corpus in federal district court. He alleged only one ground for relief: that Haight rendered ineffective assistance at sentencing because she did not investigate or present mitigating evidence. The magistrate judge‘s report recommended that Davis‘s petition be denied on the merits because he could not show that prejudice resulted from Haight‘s deficient performance. The district court adopted the magistrate judge‘s report and recommendation, and denied Davis‘s petition.
We review de novo the district court‘s decision to deny a
- 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
- resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented....
A. Section 2254(d)(1): Clearly Established Supreme Court Precedent
To establish a basis for relief on this ground, Davis must first show that there is “clearly established Federal law, as determined by the Supreme Court of the United States.”
However, as we have previously recognized, the Strickland Court “expressly declined to ‘consider the role of counsel in an ordinary sentencing, which ... may require a different approach to the definition of constitutionally effective assistance.‘” Cooper-Smith, 397 F.3d at 1244 (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052). Moreover, since Strickland, the Supreme Court has not delineated a standard which should apply to ineffective assistance of counsel claims in noncapital sentencing cases. Id. Therefore, as we said in Cooper-Smith, there is no clearly established federal law as determined by the Supreme Court in this context. Id.
We note that, even though the Strickland standard does not by necessity apply to the noncapital sentencing context, the Nevada courts were nonetheless free to adopt that standard for use in this context, as they appear to have done. Id. However, because there is no clearly established Supreme Court precedent that applies to this context, we are unable to grant Davis habeas relief on this ground.
B. Section 2254(d)(2): Unreasonable Determination of the Facts
“[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Davis argues that the Nevada Supreme Court based its decision, in part, on its erroneous understanding that he stipulated to the sentence he received.
In his written plea agreement, Davis stipulated to two six- to fifteen-year sentencing caps. However, at his sentencing hearing, Davis‘s attorney erroneously told the court that he had stipulated to two fifteen-year terms. This error was not only adopted by the Nevada Supreme Court, but also provided part of the basis for its denial of Davis‘s habeas petition.
III. Conclusion
Davis does not qualify for habeas relief under
GRABER, Circuit Judge, concurring:
I concur fully in the majority‘s opinion. I write separately only to question whether Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.), cert. denied, —— U.S. ——, 126 S.Ct. 442, 163 L.Ed.2d 336 (2005), was correct in holding broadly that the Supreme Court has failed to explain what standard applies to claims of ineffective assistance of counsel in the context of a noncapital sentence.
In Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the Court applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to a noncapital sentencing proceeding in which the defendant received a term of imprisonment. In a unanimous opinion, the Court held that a 6- to 21-month increase in the defendant‘s sentence fulfilled the “prejudice” prong at the second step of the Strickland test. Glover, 531 U.S. at 202-04, 121 S.Ct. 696. Indeed, “any amount of actual jail time has Sixth Amendment significance.” Id. at 203, 121 S.Ct. 696. Because the Seventh Circuit had bypassed the first analytical step of Strickland, id. at 202, 121 S.Ct. 696, Glover‘s case was remanded for reconsideration of, among other issues, whether Glover‘s counsel was deficient for failing to argue for grouping of the money laundering counts under the Sentencing Guidelines, id. at 205, 121 S.Ct. 696.
Additionally, I read Strickland itself simply to be discussing the way in which professional competence is to be judged in an informal setting, rather than to be suggesting that the usual two-part test does not apply. “For purposes of describing counsel‘s duties,” 466 U.S. at 687, 104 S.Ct. 2052, the Court said that the usual criteria for an adversarial trial apply with respect to capital sentencing because of its trial-like nature. What the Court did not have to consider was only “the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance.” Id. at 686, 104 S.Ct. 2052. The Court did not suggest, though, that the basic Sixth Amendment principles embodied in its decision do not apply to noncapital sentencing proceedings. Rather, it left open a specific description of counsel‘s duties in an “informal” setting where “standardless discretion” prevails.
In my view, the best way to read the Supreme Court‘s two cases together is to say that Strickland applies to a noncapital sentencing that is “formal” and that involves findings or conclusions that provide a standard for the imposition of sentence. I disagree with Cooper-Smith to the extent that it considers the foregoing princi