1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ARIC JOHNSON, Case No.: 2:20-cv-01127-JAD-BNW

4 Petitioner

5 v. Order Denying Petition for a Writ of 6 JERRY HOWELL, et al., Habeas Corpus

7 Respondents [ECF No. 1-1]

8

9 I. Introduction 10 Aric Johnson brings this habeas petition under

to challenge his 11 conviction, after a guilty plea, for attempted possession of a stolen vehicle.1 Having reviewed 12 the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District 13 Courts, I deny the petition because it plainly appears that Johnson is not entitled to habeas relief. 14 II. Legal Standard 15 Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District 16 Courts, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is 17 not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk 18 to notify the petitioner.” 19 III. Procedural History 20 In state district court, Johnson agreed to plead guilty to one count of attempted possession 21 of a stolen vehicle, which could be either a category D felony or a gross misdemeanor.2 The 22

23 1 ECF No. 1-1. 2

. 1 prosecution retained the right to argue for a sentence.3 The prosecution did not oppose 2 Johnson’s release on his own recognizance after entry of the plea.4 Johnson stipulated that, 3 should he fail to appear for any future court appearance or interview for his presentence 4 investigation report, he would face a prison sentence with a minimum term of 19 months and a 5 maximum term of 48 months.5

6 While Johnson was released on his own recognizance, he was arrested for three different 7 crimes.6 Johnson did not appear for his scheduled sentencing.7 Johnson had been convicted of 8 multiple felonies, and the prosecution filed a notice to seek adjudication as a habitual criminal.8 9 The prosecution presented three certified judgments of conviction to the state district court.9 The 10 state district court adjudicated Johnson as a habitual criminal and sentenced him to prison for 25 11 years with eligibility for parole after a minimum of 10 years.10 12 IV. Discussion 13 A. Ground 1 plainly does not entitle petitioner to relief 14 In ground 1 Johnson alleges that “[w]hile working on private property in a gated

15 community, officer took a key from a key chain in my pocket without a warrant or my 16 17 18

3

19 4 ECF No. 1-1 at 17. 20 5

21 6

at 36–37. 7

at 51–53. 22 8

. See also

. 23 9

. 10

. 1 permission claiming it belonged to a stolen U-Haul truck but in fact, it did not.”11 For two 2 reasons, ground 1 does not entitle Johnson to relief. 3 First, despite styling this as a claim under the Due Process Clause of the Fourteenth 4 Amendment, the facts that Johnson alleges are more suited to a claim for unreasonable search 5 and seizure, protected by the Fourth Amendment. If Johnson had a full and fair opportunity to

6 litigate this issue in state court, then he cannot pursue this claim in federal court.

signed a written plea agreement.13 Johnson also pleaded guilty in open court.14 He waived 8 certain constitutional rights when he pleaded guilty. However, if he did not plead guilty, then he 9 could have filed a motion to suppress in state court. Johnson thus had a full and fair opportunity 10 to litigate the Fourth Amendment claim in state court, and he may not pursue it in federal court. 11 Second, Johnson’s plea of guilty was a break in the proceedings. Johnson may not use 12 habeas corpus to raise claims of constitutional violations that occurred before entry of the plea.15 13 “He may only attack the voluntary and intelligent character of the guilty plea by showing that the 14 advice he received from counsel was not within the standards [of effective assistance of

15 counsel].”16 16 17 18 19

20 11

(citations omitted). 21 12 Stone v. Powell,

(1976). 13 ECF No. 1-1 at 35 (excerpt). 22 14

at 16–21. 23 15 See Tollett v. Henderson,

, 266–67 (1973). 16

. 1 B. Ground 2 plainly does not entitle petitioner to relief 2 In ground 2 Johnson alleges that he “had no adjudication hearing or given an opportunity 3 to withdraw [his] plea.”17 Although Johnson did not attach the entire transcript of his 4 sentencing, the excerpts that he did attach show that he had an adjudication hearing.

also had the opportunity before sentencing to move to withdraw his guilty plea.19 So ground 2

6 plainly does not entitle Johnson to relief. 7 C. Ground 3 plainly does not entitle petitioner to relief 8 In ground 3 Johnson alleges, “I had ineffective assistance of counsel starting with Mr. 9 Steven Lisk in District Court who coerced me to sign a deal, lied to me about getting probation 10 and other things and not representing me effectively in court.”20 However, Johnson himself 11 stated that nobody was forcing him to plead guilty and that he was pleading guilty of his own 12 free will.21 Johnson also acknowledged that he understood that sentencing was entirely up to the 13 court and that nobody could promise him probation.22 Ground 3 plainly does not entitle Johnson 14 to relief.

15 D. A certificate of appealability will not issue 16 To appeal the denial of a petition for a writ of habeas corpus, a petitioner must obtain a 17 certificate of appealability, after making a “substantial showing of the denial of a constitutional 18 19

20 17 ECF No. 1-1 at 5 (citations omitted). 21 18

at 36–39. 19

. 22 20 ECF No. 1-1 at 7 (citations omitted). 23 21

. 22

. 1|| right.”?? “Where a district court has rejected the constitutional claims on the merits, the showing 2|| required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or A|| wrong.”** 5 I find that reasonable jurists would not find this ruling debatable or wrong. Ground 1 6}| plainly does not entitle Johnson to relief based upon long-standing Supreme Court precedent. Ground 2 plainly does not entitle Johnson to relief based upon Johnson’s own exhibits and state 8]| statutory law. And ground 3 plainly does not entitle Johnson to relief based upon Johnson’s own 9\|exhibits. So I decline to issue a certificate of appealability. 10]| V. Conclusion 11 IT IS THEREFORE ORDERED that the petition for a writ of habeas corpus [ECF No. 12|| 1-1] is DENIED, and a certificate of appealability will not issue. 13 The Clerk of Court is directed to: 14 e File the petition [ECF No. 1-1]; 15 e Enter judgment accordingly and close this case; 16 e Add Aaron Ford, Attorney General for the State of Nevada, as counsel for 17 respondents and electronically serve upon him a copy of this order and the 18 petition. No response is necessary. 19 Dated: October 22, 2020

U.S. District Juege Jennifer A. Dorsey

22 23173

(c). 4 Slack vy. McDaniel,

(2000).