Wirth v. Legrand

CHARLES WIRTH, Petitioner, v. ROBERT LEGRAND,^[1]et al., Respondents.

No. 2:17-cv-00027-RFB-VCF

United States District Court, D. Nevada

November 30, 2022

ORDER

RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

Petitioner Charles Wirth, who entered an Alford^[2] plea to two counts of open or gross lewdness and one count of attempted sexual assault, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (See ECF Nos. 11; 20-6.) This matter is before this court for adjudication of the merits of the remaining grounds^[3] in Wirth's petition which allege that the state district court erred in denying his motion to withdraw his guilty plea, there were issues regarding the probable cause determination made by the justice court, and his counsel failed to make him aware of the lifetime supervision consequence of his plea, to retain an investigator, to hire an expert, and to move to suppress the victim's diary. (ECF Nos. 11; 11-1.) For the reasons discussed below, this court denies the petition and a certificate of appealability.

I. BACKGROUND

S.P.,^[4] Wirth's stepdaughter who was twelve years old at the time of the preliminary hearing in 2008, testified that in January 2007 Wirth “pulled down [her] underwear and he spit on [her] private area and started rubbing his penis on [her] private area.” (ECF No. 18-12 at 11-13, 16, 19.) S.P. also testified that around Christmas 2006, Wirth “pinned [her] to a table and stuck his hand up [her] skirt and into [her] underwear.” (Id. at 21.) And on another occasion around that same time, she woke up after falling asleep watching a movie “and [Wirth] was on top of [her] on his hands and knees, and was moving back and forth with his penis inside [her] vagina.” (Id. at 22.) S.P. told Wirth to get off her, and after he stood up, semen “squirted on [her] shirt and on [her] face.” (Id. at 23.) And in the summer of 2006, S.P. testified that she was in a pool with Wirth, and he first touched her “inside [her] bathing suit bottom” and then “pushe[d her] under the water and [stuck] his penis inside [her] mouth.” (Id. at 24, 26.) S.P. testified that Wirth's abuse lasted “about four to six years” and “was almost a nightly thing after [her] mom went to bed.” (Id. at 27, 41.)

On July 15, 2008, the State charged Wirth with two counts of sexual assault, attempted sexual assault, and four counts of lewdness with a child under the age of fourteen. (ECF No. 1814.) On August 5, 2008, Wirth pleaded not guilty to the charges, and a trial date was set. (ECF No. 18-18.) After jury selection began, Wirth and the State reached an agreement, and the State filed an amended information charging Wirth with open or gross lewdness, open or gross lewdness second offense, and attempted sexual assault. (ECF No. 19-26.) Wirth entered a guilty plea pursuant to Alford. (ECF No. 19-27.)

Prior to sentencing, Wirth obtained new counsel and moved to withdraw his guilty plea. (ECF No. 19-31.) The state district court denied the request. (ECF No. 20-3 at 35.) Wirth was sentenced to 12 months for the open or gross lewdness conviction, 19 to 48 months for the open or gross lewdness second offense conviction, and 96 to 240 months for the attempted sexual assault conviction. (ECF No. 20-6.) Wirth was also sentenced to lifetime supervision and was ordered to register as a sex offender. (Id.) Wirth appealed, and the Nevada Supreme Court affirmed. (ECF No. 20-18.) Wirth also filed a state post-conviction petition, which was denied by the state district court and affirmed on appeal by the Nevada Court of Appeals. (ECF Nos. 20-34; 22-4; 23-19.)

II. GOVERNING STANDARDS OF REVIEW

A. Antiterrorism and Effective Death Penalty Act (“AEDPA”)

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under AEDPA:

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

(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.

A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application' clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation omitted).

The Supreme Court has instructed that “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” and “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (internal quotation marks and citations omitted)).

B. Standard for effective-assistance-of-counsel claims

In Strickland v. Washington, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1) that the attorney's “representation fell below an objective standard of reasonableness,” and (2) that the attorney's deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The petitioner's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to establish prejudice under Strickland, it is not enough for the habeas petitioner “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

When the ineffective assistance of counsel claim is based on a challenge to a guilty plea, the Strickland prejudice prong requires the petitioner to demonstrate “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); see also Lafler v. Cooper, 566 U.S. 156, 163 (2012) (“In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.”).

Where a state district court previously adjudicated the claim of ineffective assistance of counsel under Strickland, establishing that the decision was unreasonable is especially difficult. See Richter, 562 U.S. at 104-05. In Richter, the United States Supreme Court clarified that Strickland and § 2254(d) are each highly deferential, and when the two apply in tandem, review is doubly so. Id. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply; hence, the Supreme Court's description of the standard as doubly deferential.”). The Supreme Court further clarified that, “[w]hen § 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.

III. DISCUSSION

A. Grounds 1 and 2

In ground 1, Wirth alleges that his counsel provided ineffective assistance in violation of the Fifth, Sixth, and Fourteenth Amendments because counsel failed to make him aware of the lifetime supervision consequence of his plea. (ECF No. 11 at 4.) Although not stated specifically in ground 1, Wirth argues generally that “there was a reasonable probability that he would have chosen to go to trial” but for his counsel's unreasonable performance.^[5] (Id. at 3.) Relatedly, in ground 2, Wirth alleges that his was...