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6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

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9 SPRING MAY CUSTER, Case No. 2:19-cv-01633-RFB-VCF

10 Petitioner, ORDER v. 11 ALLERY K. MARQUEZ-ESPINO, et al., 12 Respondents. 13 14 15 Respondents have answered the remaining claim in Spring May Custer’s pro se 28 U.S.C. 16 § 2254 petition for a writ of habeas corpus. (ECF No. 12). The answer was served on Custer via U.S. Mail at her address of record but was returned as undeliverable.1 As discussed below, her 17 petition is denied. 18

19 I. PROCEDURAL BACKGROUND 20 In April 2018, Custer pleaded guilty to theft related to the embezzlement of over 21 $120,000 from her employer. Exh. 5.2 The state district court sentenced her to a term of 19 to 72 22 months. Exh. 7. Judgment of conviction was entered on August 28, 2018. Exh. 8. 23 The Nevada Supreme Court dismissed Custer’s untimely appeal for lack of jurisdiction in 24 December 2018. Exh. 15. The Nevada Court of Appeals affirmed the denial of her state 25 postconviction habeas corpus petition in July 2020. Exh. 31. 26

27 1 The Nevada Department of Corrections website reflects that Custer was released from custody sometime after December 2019. 1 Custer dispatched her federal habeas petition for mailing on or about July 2019 (ECF No. 2 1). Respondents have now answered the remaining claim of Custer’s Petition: Ground 3 for 3 ineffective assistance of counsel (“IAC”) (ECF No. 12). 4

5 II. LEGAL STANDARD AND APPLICABLE LAW 6 a. AEDPA Standard of Review 7

(d), a provision of the Antiterrorism and Effective Death Penalty Act 8 (“AEDPA”), provides the legal standards for this Court’s consideration of the petition in this 9 case:

10 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall 11 not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 12 claim ―

13 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established 14 Federal law, as determined by the Supreme Court of the United States; or 15 (2) resulted in a decision that was based on an 16 unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 17 18 The AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications in 19 order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given 20 effect to the extent possible under law.” Bell v. Cone,

(2002). A court’s 21 ability to grant a writ is limited to cases where “there is no possibility fair-minded jurists could 22 disagree that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington v. Richter,

(2011). The Supreme Court has emphasized “that even a strong case 23 for relief does not mean the state court’s contrary conclusion was unreasonable.”

(citing 24 Lockyer v. Andrade,

(2003)); see also Cullen v. Pinholster,

, 181 25 (2011) (describing the AEDPA standard as “a difficult to meet and highly deferential standard 26 for evaluating state-court rulings, which demands that state-court decisions be given the benefit 27 of the doubt” (internal quotation marks and citations omitted)). 1 A state court decision is contrary to clearly established Supreme Court precedent, within 2 the meaning of

, “if the state court applies a rule that contradicts the governing 3 law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are 4 materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a 5 result different from [the Supreme Court’s] precedent.” Lockyer,

(quoting 6 Williams v. Taylor,

(2000), and citing Bell,

)). 7 A state court decision is an unreasonable application of clearly established Supreme 8 Court precedent, within the meaning of

(d), “if the state court identifies the 9 correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies 10 that principle to the facts of the prisoner’s case.” Lockyer,

(quoting Williams, 529 11 U.S. at 413). The “unreasonable application” clause requires the state court decision to be more 12 than incorrect or erroneous; the state court’s application of clearly established law must be 13 objectively unreasonable. Id. (quoting Williams,

). 14 To the extent that the state court’s factual findings are challenged, the “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. 15 Blodgett,

(9th Cir. 2004). This clause requires that the federal courts “must be 16 particularly deferential” to state court factual determinations.

The governing standard is not 17 satisfied by a showing merely that the state court finding was “clearly erroneous.”

. 18 Rather, the AEDPA requires substantially more deference: 19

. . . . [I]n concluding that a state-court finding is 20 unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this 21 were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of 22 appellate review, could not reasonably conclude that the finding is supported by the record. 23

24 Taylor v. Maddox,

(9th Cir. 2004); see also Lambert,

. 25 Under

(e)(1), state court factual findings are presumed to be correct 26 unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by 27 a preponderance of the evidence that he is entitled to habeas relief. Cullen,

. /// 1 b. Ineffective Assistance of Counsel 2 IAC claims are governed by the two-part test announced in Strickland v. Washington, 3

(1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective 4 assistance of counsel has the burden of demonstrating that (1) the attorney made errors so serious 5 that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) 6 that the deficient performance prejudiced the defense. Williams,

-91 (citing 7 Strickland,

). To establish ineffectiveness, the petitioner must show that counsel’s 8 representation fell below an objective standard of reasonableness.

To establish prejudice, the 9 petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional 10 errors, the result of the proceeding would have been different.

A reasonable probability is 11 “probability sufficient to undermine confidence in the outcome.”

Additionally, any review of 12 counsel’s performance must be “highly deferential” and must adopt counsel’s perspective at the 13 time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 14

. It is the petitioner’s burden to overcome the presumption that counsel’s actions might be considered sound trial strategy.

15 Ineffective assistance of counsel under Strickland requires a showing of counsel’s 16 deficient performance resulting in prejudice, “with performance being measured against an 17 objective standard of reasonableness, . . . under prevailing professional norms.” Rompilla v. 18 Beard,

(2005) (internal quotations and citations omitted). When the IAC claim 19 is based on a challenge to a guilty plea, the Strickland prejudice prong requires a petitioner to 20 demonstrate “that there is a reasonable probability that, but for counsel’s errors, he would not 21 have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

, 59 22 (1985). 23 If the state court has already rejected an IAC claim, a federal habeas court may only grant 24 relief if that decision was contrary to, or an unreasonable application of, the Strickland standard. 25 See Yarborough v. Gentry,

(2003). There is a strong presumption that counsel’s 26 conduct falls within the wide range of reasonable professional assistance.

27 The United States Supreme Court has described federal review of a state supreme court’s 1 Mirzayance,

(2009)). The Supreme Court emphasized that: “We take a ‘highly 2 deferential’ look at counsel’s performance . . . through the ‘deferential lens of § 2254(d).’” Id. 3 (internal citations omitted). Moreover, federal habeas review of an IAC claim is limited to the 4 record before the state court that adjudicated the claim on the merits. Cullen,

. 5 The Supreme Court has specifically reaffirmed the extensive deference owed to a state court’s 6 decision regarding IAC claims: 7 Establishing that a state court’s application of Strickland 8 was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly 9 deferential,” id. at 689,

; Lindh v. Murphy,

,

,

(1997), and when 10 the two apply in tandem, review is “doubly” so, Knowles,

. The Strickland standard is a general one, so the range of 11 reasonable applications is substantial.

. Federal habeas courts must guard against the danger of equating 12 unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is whether there is 13 any reasonable argument that counsel satisfied Strickland's deferential standard.

U.S. at 105. “A court considering a claim of ineffective assistance of counsel 15 must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of 16 reasonable professional assistance.”

at 104 (quoting Strickland,

). “The 17 question is whether an attorney’s representation amounted to incompetence under prevailing 18 professional norms, not whether it deviated from best practices or most common custom.” Id. 19 (internal quotations and citations omitted). 20 Custer pleaded guilty upon the advice of counsel, thus she “may only attack the voluntary 21 and intelligent character of the guilty plea by showing that the advice she received from counsel 22 was [ineffective,] . . . . and that there is a reasonable probability that, but for counsel’s errors, 23 she would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 24

(1985); Lambert v. Blodgett,

(9th Cir. 2004). 25

26 III. INSTANT PETITION 27 Under Ground 3, Custer contends that her counsel was ineffective because he induced her 1 1 at 9-12). Custer waived her appearance at the entry of her plea because she was living in 2 Alaska. See Exh. 3 at 6; Exh. 6. She pleaded guilty in absentia, and the agreement provided: 3 I understand that as a consequence of my plea of guilty the 4 Court must sentence me to imprisonment in the Nevada Department of Corrections for a minimum term of not less than 5 ONE (1) year and a maximum term of not more than TEN (10) 6 years. Exh. 5 at 3. 7 Custer’s counsel attached his certification to the guilty plea agreement indicating that he 8 advised her of the penalties for the charges and the potential restitution. He also certified that to 9 his knowledge Custer understood the consequences of entering into the plea agreement, and that 10 Custer signed the agreement voluntarily. Exh. 5 at 7. 11 Custer insists that her counsel told her she would get probation and also attached an email 12 from him to her that she presented during her state postconviction litigation: 13 The State would retain the right to argue at sentencing, but 14 we would have a really good chance at probation considering your 15 lack of criminal history and the significant restitution that is owed here. It’s of far greater benefit for you to remain out of custody and 16 on probation so that you have the ability to actually repay your restitution. You would also be able to transfer any grant of 17 probation back to where you reside. 18 Exh. 18 at 31. 19 Parole and Probation recommended 14 to 60 months’ probation and over $121,000 in 20 restitution. Exh. 18 at 50. As Custer’s counsel informed her, the State retained the right to argue. 21 At sentencing the State urged the court that her offense warranted incarceration and argued for a 22 term of 28 to 72 months. See Exh. 7. The Court sentenced Custer to a term of 19 to 72 months. 23 Id. at 20. 24 The Nevada Court of Appeals affirmed the denial of this claim in Custer’s state postconviction petition: 25

26 Custer claimed her counsel was ineffective for failing to explain the consequences of her guilty plea and causing her to 27 believe she would be sentenced to probation. Custer supported this claim with an email purportedly from counsel in which counsel 1 probation. However, in the email, counsel did not provide any assurances or guarantee Custer would actually receive probation. 2 Moreover, in the written plea agreement, Custer acknowledged that 3 she understood the potential penalties she faced by entry of her guilty plea, she had not been promised or guaranteed a particular 4 sentence, and she understood her ultimate sentence was to be determined by the sentencing court. In light of the record, Custer 5 failed to demonstrate her counsel's performance fell below an objective standard of reasonableness or a reasonable probability 6 she would have refused to plead guilty and would have insisted on 7 proceeding to trial had counsel further discussed this issue with her. Therefore, we conclude the district court did not err by 8 denying this claim.[FN 1]

9 [FN 1: To the extent Custer asserted her guilty plea was invalid because she believed she would be placed on probation, 10 Custer failed to demonstrate withdrawal of her guilty plea was 11 necessary to correct a manifest injustice. See NRS 176.165. Exh. 31 at 3. 12 Custer was originally charged with 22 counts of theft and one count of unlawful acts 13 regarding computers. Exh. 1 at 3. She ultimately pleaded guilty to a single count of theft. Exh. 5. 14 Her counsel was not ineffective for informing her that, although the State retained the right to 15 argue, he thought she was likely to receive probation. Indeed, Parole and Probation 16 recommended probation. Custer does not allege that there is a reasonable probability that, but for 17 her counsel’s errors, she would not have pleaded guilty but would have insisted on going to trial. 18 As Respondents point out, Custer acknowledged in an email to her counsel, as she weighed 19 whether to enter into the guilty plea agreement, that even if she could present evidence as to the 20 victim’s alleged bad character: “I still had checks I cashed at banks and could still be convicted 21 of forgery of checks, embezzlement and grand theft.” Exh. 18 at 23. 22 Custer has not demonstrated that the Nevada Court of Appeal’s decision was contrary to 23 or involved an unreasonable application of Strickland.

(d). Accordingly, federal 24 habeas relief is denied as to ground 3. The petition, therefore, is denied in its entirety. 25 26 IV. CERTIFICATE OF APPEALABILITY 27 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules Governing ' Accordingly, the Court has sua sponte evaluated the claims within the petition for suitability for 2 the issuance of a COA. See

(c); Turner v. Calderon,

(9th 3 Cir. 2002). 4 Pursuant to

(c)(2), a COA may issue only when the petitioner “has made a substantial showing of the denial of a constitutional right.” With respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

(2000) (citing Barefoot v. Estelle,

, 893 n.4 (1983)). For procedural rulings, a 9}| COA will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court’s procedural ruling was correct.

12 After reviewing its determinations and rulings in adjudicating Custer’s petition, the Court finds that none of those rulings meets the Slack standard. The Court therefore declines to issue a 44|| certificate of appealability for its resolution of Custer’s petition. 15 16 V. CONCLUSION 17 IT IS THEREFORE ORDERED that the Petition for Writ of Habeas Corpus (ECF No. 48 1) is DENIED. 49 IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

50 IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly and close this case. 21 22 DATED: August 22, 2023. □ | RICHARD F. BOULWARE, II 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28