Tilcock v. Budge

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARRY GENE TILCOCK,  No. 07-16184

Petitioner-Appellant,

v.  D.C. No.

CV-03-00037-ECR

MICHAEL BUDGE,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, District Judge, Presiding

Argued and Submitted

June 9, 2008—San Francisco, California

Filed August 15, 2008

Before: J. Clifford Wallace and Susan P. Graber,

Circuit Judges, and David A. Ezra,* District Judge.

Opinion by Judge Graber

*The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation.

10719

TILCOCK v. BUDGE 10721

COUNSEL

David Anthony and Anne R. Traum, Assistant Federal Public

Defenders, Las Vegas, Nevada, for the petitioner-appellant.

10722 TILCOCK v. BUDGE

Conrad Hafen, Deputy Attorney General, and Thom Gover,

Senior Deputy Attorney General, Las Vegas, Nevada, for the

respondent-appellee.

OPINION

GRABER, Circuit Judge:

A Nevada jury convicted Petitioner Larry Gene Tilcock of

burglary, felony failure to stop on signal of police, and being

a felon in possession of a firearm. The trial court sentenced

Petitioner under Nevada’s habitual criminal statute, Nev. Rev.

Stat. § 207.010, to three concurrent terms of life imprison-

ment without the possibility of parole. The Nevada Supreme

Court dismissed Petitioner’s direct appeal and affirmed the

trial court’s denial of his habeas petitions. The federal district

court denied Petitioner’s petition for a writ of habeas corpus.

We affirm in part, reverse in part, and remand for an evidenti-

ary hearing.

FACTUAL AND PROCEDURAL HISTORY

Because Petitioner filed his habeas petition after April 24,

1996, the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, gov-

erns. 28 U.S.C. § 2254; Woodford v. Garceau, 538 U.S. 202,

210 (2003). We presume that the state court’s findings of fact

are correct unless Petitioner rebuts that presumption with

clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis

v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Petitioner has

not attempted to overcome the presumption with respect to

the underlying events. We therefore rely on the state court’s

recitation of the facts. As found by the Nevada state trial

court:

On January 21, 1998, detectives from the Las

Vegas Metropolitan Police Department, Repeat

TILCOCK v. BUDGE 10723

Offender’s Program, initiated surveillance on [Peti-

tioner] at his residence. The detectives observed

[Petitioner] get into his car, and drive away from his

residence. [Petitioner] drove to an apartment com-

plex, got out of his vehicle, and looked into the win-

dows of several apartments. [Petitioner] left that

complex, and followed a car into a gated condomin-

ium complex.

At the condominium complex, Sergeant Levins

saw [Petitioner] back his car into a parking spot, and

open the trunk. Sergeant Levins positioned himself

so that he could see [Petitioner] through a crack in

the block wall of the complex. A few moments later

Sergeant Levins observed [Petitioner] standing on a

step by a condominium window with a tire iron in

his hand. Then Sergeant Levins saw [Petitioner] turn

toward the condominium. [Petitioner] stepped out of

the Sergeant’s point of view, and Sergeant Levins

immediately heard the sound of breaking glass.

Next, Sergeant Levins heard glass being cleared

from the window frame. As Sergeant Levins was

about to give the signal for the team to move in to

arrest [Petitioner], [Petitioner] walked back to his

car, and Detective Johnson pulled into the complex.

When [Petitioner] saw Detective Johnson, he

hopped in his car and began to drive away. Two

detectives were approaching [Petitioner] with their

guns drawn, and [Petitioner] accelerated his car, and

drove directly at one of the men, who had to jump

out of [Petitioner]’s way. Detective Sias pursued

[Petitioner] to [the] gate of the complex, which had

been blocked by several police cars. He parked three

or four feet behind [Petitioner]’s car.

Detective Sias exited his vehicle and began yell-

ing at [Petitioner] that he was a police officer and

10724 TILCOCK v. BUDGE

that [Petitioner] should exit his vehicle. [Petitioner]

was not exiting the vehicle as Detective Sias

approached [Petitioner]’s car. Detective Sias

observed [Petitioner] move his hand toward a base-

ball cap in the passenger seat. The cap was covering

an object that Detective Sias thought was a weapon.

[Petitioner] quickly moved his hand away from

the cap, glanced in the car mirrors, and put the car

in reverse and accelerated backwards. He slammed

his car into Detective Johnson’s vehicle. Detective

Sias saw [Petitioner] make another movement to

grab what he had earlier perceived to be a weapon.

Because [Petitioner] was known to be armed and

dangerous, Detective Sias, who feared for every-

one’s safety, shot [Petitioner] in the arm, and

watched [Petitioner] go down.

A few seconds later, [Petitioner] sat up, acceler-

ated, and sped out of the gate past the police cars.

[Petitioner] was able to escape by driving at exces-

sive speeds.

Officer Tafoya received an emergency call to aid

in the pursuit of a suspect. He turned on his lights

and siren, and began to drive to the area described in

the call. While he was driving on Reno Avenue,

Officer Tafoya saw [Petitioner] driving directly

toward him on the wrong side of the road. Officer

Tafoya had to swerve out of [Petitioner]’s way and

onto the curb to avoid being struck by [Petitioner].

[Petitioner] kept driving, and Officer Tafoya made a

U-turn to follow him.

[Petitioner] made several illegal driving maneu-

vers, endangering the lives of many more people.

The chase finally ended when [Petitioner] crashed

into a curb at a Circle K convenience store. While

TILCOCK v. BUDGE 10725

placing [Petitioner] under arrest, Officer Tafoya dis-

covered a handgun in [Petitioner]’s pocket.

(Citations omitted.)

The State of Nevada charged Petitioner with burglary, fel-

ony failure to stop on signal of police, being a felon in posses-

sion of a firearm, and two counts of attempted murder. A jury

convicted Petitioner of the burglary, felony failure to stop,

and felon in possession of a firearm charges, but acquitted

him of the attempted murder charges. The trial court sen-

tenced Petitioner as a habitual criminal, under Nevada

Revised Statutes section 207.010, to three consecutive terms

of life imprisonment without the possibility of parole.1

1

Under section 207.010:

1. . . . [A] person convicted in [Nevada] of:

....

(b) Any felon[], who has previously been three times convicted,

whether in this state or elsewhere, of any crime which under

the laws of the situs of the crime or of this state would

amount to a felony . . . is a habitual criminal and shall be

punished for a category A felony by imprisonment in the

state prison:

(1) For life without the possibility of parole;

(2) For life with the possibility of parole, with eligibility

for parole beginning when a minimum of 10 years has

been served; or

(3) For a definite term of 25 years, with eligibility for

parole beginning when a minimum of 10 years has been

served.

2. It is within the discretion of the prosecuting attorney whether

to include a count under this section in any information or

file a notice of habitual criminality if an indictment is found.

The trial judge may, at his discretion, dismiss a count under

this section which is included in any indictment or informa-

tion.

10726 TILCOCK v. BUDGE

Petitioner appealed to the Nevada Supreme Court, which

affirmed the trial court’s judgment of conviction. Petitioner

then filed two habeas petitions and one motion for modifica-

tion of sentence with the state trial court, which the court

denied. The Nevada Supreme Court consolidated all three

post-conviction applications and affirmed the trial court. Peti-

tioner filed a habeas petition in federal district court, alleging

12 grounds for relief.

Petitioner also filed in state trial court a motion to correct

an illegal sentence, which the court denied. The Nevada

Supreme Court affirmed the trial court, and Petitioner

amended his federal habeas petition to include this claim as

a thirteenth ground for relief.

The district court denied Petitioner’s habeas petition. Peti-

tioner timely appeals.

STANDARDS OF REVIEW

We review de novo a district court’s denial of a habeas

petition filed pursuant to 28 U.S.C. § 2254. Gill v. Ayers, 342

F.3d 911, 917 (9th Cir. 2003). Habeas relief is warranted only

if the state court’s decision was contrary to, or involved an

unreasonable application of, clearly established federal law as

determined by the Supreme Court, or resulted in an unreason-

able determination of facts in light of the evidence presented

in the state court proceedings. 28 U.S.C. § 2254(d)(1)-(2);

Williams v. Taylor, 529 U.S. 362, 407-09 (2000).

We review for abuse of discretion a district court’s denial

of a request for an evidentiary hearing under AEDPA stan-

dards. Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005).

A district court abuses its discretion in denying a request for

an evidentiary hearing if a petitioner “has alleged facts that,

if proven, would entitle him to habeas relief, and . . . he did

not receive a full and fair opportunity to develop those facts.”2

Id. at 1167 (internal quotation marks omitted).

2

If the state courts did not afford a petitioner a full and fair hearing,

“then the state court’s decision was based on an unreasonable determina-

tion of the facts.” Earp, 431 F.3d at 1167.

TILCOCK v. BUDGE 10727

DISCUSSION

Petitioner raises a multitude of issues in his appeal, only

two of which warrant discussion. On all other issues, we agree

with the district court and affirm its rulings.

A. Nevada’s habitual sentencing statute does not violate

Apprendi.

Petitioner argues that his sentence as a habitual offender

under Nevada’s habitual criminal statute, Nev. Rev. Stat.

§ 207.010, violates Apprendi v. New Jersey, 530 U.S. 466

(2000), “because a habitual sentence under [section] 207.010,

necessarily depends on judicial factfinding.” According to

Petitioner, “Nevada has a two-step process in which the court

determines (1) whether the State has proved the predicate

convictions, and (2) whether to dismiss or impose a habitual

sentence based on the record as a whole.” (Internal quotation

marks omitted.) We disagree.

[1] Under Apprendi, 530 U.S. at 490, “[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be sub-

mitted to a jury, and proved beyond a reasonable doubt.”

(Emphasis added.) Under section 207.010, if a person has

three qualifying felony convictions and is convicted of

another felony, the person “is a habitual criminal and shall be

punished” as one, Nev. Rev. Stat. § 207.010(1)(b) (emphases

added), unless a prosecutor or a judge exercises discretion to

be more lenient, id. § 207.010(2). Thus, under the terms of the

statute, the fact of Petitioner’s prior convictions alone

exposed Petitioner to the statutory maximum of life imprison-

ment without the possibility of parole. The statute does not

require or even authorize additional judicial factfinding to

determine whether a defendant is a habitual criminal. Instead,

“[t]he plain language of Nevada Revised Statutes

§ 207.010(2) grants the [trial] court discretion to dismiss a

count of habitual criminality, not the discretion to impose

10728 TILCOCK v. BUDGE

such an adjudication based on factors other than prior convic-

tions.” O’Neill v. State, 153 P.3d 38, 40 (Nev.) (emphases

added), cert. denied, 128 S. Ct. 153 (2007). The opportunity

for leniency by the prosecutor or the judge is a judgment call,

not a factual finding. And that discretion can only reduce, not

increase, the statutorily imposed maximum punishment.

[2] Petitioner argues that “O’Neill cannot undo in [Petition-

er]’s case the effects of the [Nevada] court’s prior case law

requiring judicial fact-finding as a necessary component of

every habitual criminal adjudication.” By its own reasoning,

though, O’Neill changed nothing under section 207.010. See

O’Neill, 153 P.3d at 43 (“[W]e disapprove any interpretation

of our prior case law as suggesting that facts other than prior

convictions must be found in order to adjudicate a defendant

a habitual criminal.”). And in Hughes v. State, 996 P.2d 890

(Nev. 2000) (per curiam), seven years before it issued

O’Neill, the Nevada Supreme Court emphasized that,

although section 207.010 renders a defendant with three qual-

ifying convictions a habitual criminal, the statute gives a sen-

tencing court only the discretion not to adjudicate the

defendant as a habitual criminal. See id. at 892-94 (“[T]he

decision to adjudicate an individual as a habitual criminal is

not an automatic one because the district court has broad dis-

cretion to dismiss a habitual criminal allegation. . . . [A]s long

as the record as a whole indicates that the sentencing court

was not operating under a misconception of the law regarding

the discretionary nature of a habitual criminal adjudication

and that the court exercised its discretion, the sentencing court

has met its obligation under Nevada law.”). Consequently,

both before and after O’Neill, under Nevada precedent, “a

[Nevada trial] court may consider facts such as a defendant’s

criminal history, mitigation evidence, victim impact state-

ments and the like in determining whether to dismiss such a

count.” O’Neill, 153 P.3d at 43. But “such facts do not oper-

ate to increase the punishment beyond the already established

statutory maximum and therefore need not be found by a jury

beyond a reasonable doubt.” Id.

TILCOCK v. BUDGE 10729

Petitioner’s reliance on Kaua v. Frank, 436 F.3d 1057 (9th

Cir. 2006), cert. denied, 127 S. Ct. 1233 (2007), is misplaced.

In Kaua, we held that the sentencing scheme under Hawaii

Revised Statutes section 706-662(4)(a), which provided for an

extended sentence if “the defendant [wa]s a multiple offender

whose criminal actions were so extensive that a sentence of

imprisonment for an extended term [wa]s necessary for pro-

tection of the public,” violated Apprendi. We so held because

[t]he Hawaii Supreme Court ha[d] ruled that sec-

tion 706-662(4) requires the sentencing court to con-

duct a two-step process. First, the court must find

that the defendant falls within the class of “multiple

offenders” subject to an extended sentence. Under

section 706-662(4)(a), this first step requires the

court to find that the defendant is being sentenced

for two or more felonies, or is already under sen-

tence of imprisonment for a felony. Second, the

court must determine whether an extended sentence

is necessary for the protection of the public.

Kaua, 436 F.3d at 1059 (footnotes omitted). Under Hawaii

precedent, both steps must be followed for a defendant to

qualify for an extended sentence. See id. at 1060-61 (“In State

v. Okumura, [894 P.2d 80 (Haw. 1995),] the Hawaii Supreme

Court stated that both steps of the process ‘must be followed’

when the prosecution seeks an extended sentence.” (emphasis

omitted)).

[3] In other words, under Hawaii law, a defendant qualifies

for an extended sentence based on both the fact of prior con-

victions and a judicial finding that an extended sentence is

necessary for public protection. By contrast, under both the

text of Nevada Revised Statutes section 207.010 and Nevada

precedent, the fact of prior convictions alone exposes a defen-

dant to the statutory maximum under Nevada’s habitual crimi-

nal statute. Consequently, section 207.010 does not violate

10730 TILCOCK v. BUDGE

Apprendi, and the Nevada Supreme Court did not unreason-

ably apply Apprendi in rejecting Petitioner’s claim.

B. Petitioner is entitled to an evidentiary hearing on his

claim of ineffective assistance of trial counsel at

sentencing.

Petitioner argues that his trial counsel was ineffective at

sentencing because counsel failed to investigate the eight con-

victions listed in the prosecution’s Notice of Intent to Seek

Punishment as a Habitual Criminal and erroneously conceded

the eight convictions. Petitioner asserts that one conviction

did not exist, one conviction was too old to be considered for

sentencing purposes, one conviction was a misdemeanor, and

three of the convictions were duplicative because they arose

from the same transaction or occurrence as another convic-

tion. According to Petitioner, had his trial counsel provided

effective representation, the state trial court could have con-

sidered only two of the eight proffered convictions and, there-

fore, could not have found that Petitioner qualified as a

habitual criminal.

In his state habeas petition and again in his federal petition,

Petitioner argued that his trial counsel was ineffective for fail-

ing to object to non-qualifying convictions that would have

rendered Petitioner ineligible to be sentenced as a habitual

criminal. In both petitions, Petitioner sought an evidentiary

hearing to develop this claim, which the state courts and the

federal district court denied. Petitioner thus has not received

a full and fair opportunity to develop his claim. See Earp, 431

F.3d at 1169 (“It is evident from the record that [the peti-

tioner] has never received an opportunity to develop his claim

. . . . The issue . . . was raised on habeas, and neither the state

court nor the district court allowed him an evidentiary hear-

ing.”). Consequently, Petitioner is entitled to an evidentiary

hearing to develop the facts of this claim if he has presented

a colorable claim for relief. Id. at 1167. Petitioner’s claim is

TILCOCK v. BUDGE 10731

colorable if he has alleged specific facts that, if true, would

entitle him to relief. Id. at 1167 & n.4.

[4] Under Strickland v. Washington, 466 U.S. 668, 687

(1984), an ineffective assistance claim “has two components.

First, the [petitioner] must show that counsel’s performance

was deficient. . . . Second, the [petitioner] must show that the

deficient performance prejudiced the defense.”

[5] On the deficiency prong, “[b]ecause of the difficulties

inherent in making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the

[petitioner] must overcome the presumption that, under the

circumstances, the challenged action might be considered

sound trial strategy.” Id. at 689 (internal quotation marks

omitted). Here, the facts as alleged by Petitioner overcome

that presumption. We can think of nothing strategic about fail-

ing to object at sentencing to categorically non-qualifying

convictions that would prevent a defendant from being eligi-

ble for sentencing under a habitual criminal statute. If the

prosecution alleges that a defendant is a habitual criminal on

the basis of non-qualifying convictions, the defendant has

everything to gain and nothing to lose by objecting.

[6] On the prejudice prong, the facts alleged by Petitioner

“show that there is a reasonable probability that, but for coun-

sel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. If Petitioner’s trial counsel

had provided effective assistance by objecting to the proffered

non-qualifying convictions and thereby limited the trial

court’s consideration to two qualifying convictions, Petitioner

would have been ineligible for sentencing as a habitual crimi-

nal under section 207.010.3 In other words, the trial court

3

The government argues that any error was harmless because Petitioner

was impeached at trial with three prior felony convictions: a 1973 drug

conviction, a 1987 burglary conviction in Nevada, and a 1988 burglary

10732 TILCOCK v. BUDGE

could not have sentenced Petitioner to three concurrent terms

of life imprisonment without the possibility of parole; instead,

Petitioner would have faced a statutory maximum sentence of

22 years’ imprisonment.

[7] We hold that Petitioner is entitled to an evidentiary

hearing because the facts that he has alleged, if proved, may

demonstrate ineffective assistance of his trial counsel at sen-

tencing. We remand for an evidentiary hearing to give Peti-

tioner an opportunity to prove the facts supporting his claim.

AFFIRMED in part, REVERSED in part, and

REMANDED for an evidentiary hearing. The parties shall

bear their own costs on appeal.

conviction in California. However, only the 1987 conviction in Nevada

was proffered by the prosecution as a qualifying conviction for Petition-

er’s sentence as a habitual criminal, and Petitioner does not challenge the

legitimacy of that conviction. Consequently, the prosecution’s use of the

other two convictions for impeachment purposes does not alter the color-

able nature of Petitioner’s claim that effective trial counsel would have

eliminated six of the prosecution’s eight proffered convictions for sentenc-

ing Petitioner as a habitual criminal.