Petition for Writ of Certiorari — Melvin Dosdos Dulcero, Petitioner v. Dwight W. Neven, Warden, et al.

Supreme Court briefSep 4, 2018

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APPENDIX

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JUN 25 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MELVIN DOSDOS DULCERO,

Petitioner-Appellant,

D. W. NEVEN and ATTORNEY

GENERAL FOR THE STATE OF

NEVADA,

No.

18-15456

D.C. No. 2:14-cv-01259-JAD-VCF

District of Nevada,

Las Vegas

ORDER

Respondents-Appellees.

Before:

PAEZ and RAWLINS ON, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 4) is denied

because appellant has not shown that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28

U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012); Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

Case 2:14-cv-01259-JAD-VCF Document 41

Filed 02/26/18 , Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Melvin Dosdos Dulcero,

2:14-cv-01259-JAD-VCF

Petitioner

Order Dismissing Petition and Closing

Case

D.W. Neven, et al.,

Respondents

[ECF No. 6]

Petitioner Melvin Dosdos Dulcero brings this habeas action under 28 U.S.C. § 2254 to

challenge his 2007 conviction in Nevada state court for attempted murder with the use of a

deadly weapon.1 After evaluating his remaining claims on the merits, I deny Dulcero’s petition

for a writ of habeas corpus and dismiss this action with prejudice. And because reasonable

jurists would not find my conclusions on any of the claims (including those dismissed previously

on procedural grounds) to be debatable or wrong, I do not issue a certificate of appealability for

any of them.

Background

Dulcero pled guilty on May 30, 2007, to attempted murder with the use of a deadly

weapon for an attack on his live-in mother-in-law. He struck her multiple times in the head with

a baseball bat until she passed out, then he stabbed her repeatedly in the chest with a knife.2 Now

Dulcero is serving two consecutive sentences of 60-180 months for the attempted murder and the

deadly weapon enhancement. Dulcero challenged his conviction in the state courts on both direct

appeal and post-conviction review.

ECF No. 19-2; Exhibit 27. The cited exhibit and ECF attachment are the same document, but

the parallel naming conventions are provided throughout this order to better assist Dulcero in

locating the documents in his hard-copy records.

2 ECF Nos. 18-20 at 10-11; 20 at 9-10.

Case 2:14-cv-01259-JAD-VCF Documents

Filed 02/26/18 Page 2 of 11

Standard of Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a “highly

deferential” standard for evaluating a state court’s decision to deny a petition for habeas corpus

on its merits.3 A federal court may not grant habeas relief merely because it might conclude that

the state court’s decision was incorrect.4 The federal district court may grant relief only if the

state court decision was: (1) contrary to or an unreasonable application of clearly established U.S.

Supreme Court law; or (2) was based on an unreasonable determination of the facts in light of the

evidence presented at the state-court proceeding.5

A state court’s decision is contrary to clearly established law only if it applies a rule that

contradicts the governing law or if the decision confronts a set of facts that are materially

indistinguishable from a Supreme Court decision and nevertheless arrives at a different result.6

14 A state court need not even be aware of Supreme Court precedents, as long as neither the

reasoning nor the result of its decision contracts them.7 “A federal court may not overrule a state

court for simply holding a view different from its own, when the precedent from [the Supreme]

Court is, at beast, ambiguous.”8 And when a state court’s factual findings are challenged, federal

courts “must be particularly deferential” to those findings.9 State-court factual findings are

presumed to be correct unless the petitioner can rebut that presumption by clear and convincing

3 Cullen v. Pinholster, 563 U.S. 170 (2011).

4 Id. at 202.

5 Id. at 181-88; see also 28 U.S.C. § 2254(d).

6 See, e.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003).

1 Id.

Id. at 16.

9 Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004); see also 28 U.S.C. § 2254(d)(2).

Case 2:14-cv-01259-JAD-VCF Document 41

Filed 02/26/18 Page 3 of 11

evidence.10

Discussion

Grounds 2(b) and 2(c): Trial counsel was ineffective for failing to: (b) argue that

Dulcero did not have the specific intent to attempt murder because his medication

induced his behavior; and (c) raise his medication as a mitigating factor at

sentencing.11

In ground 2(b), Dulcero alleges that he was denied effective assistance of trial counsel in

violation of the Sixth and Fourteenth Amendments because his counsel did not argue that

antidepressants—without counteracting mood stabilizers—prevented him from having the

specific intent needed to support the charges. He alleges that counsel failed to adequately

investigate this defense, improperly advised him to plead guilty despite this defense’s alleged

validity, and then failed to raise it as a mitigating factor at his sentencing.

Dulcero had a prescription for the antidepressant Paroxetine—also known by its trade

name Paxil—as well as medications to combat insomnia and acid reflux.12 Dulcero’s trial

defense counsel, Sean Sullivan, testified at the December 19, 2012, state post-conviction

evidentiary hearing that: (1) Sullivan and the defense investigator had researched “Paxil-induced

mania and aggression; and also Prozac-induced violence” and associated case law with regard to

mitigation at sentencing;13 (2) he retained psychiatrist Dr. Melissa Piasecki, M.D., as an expert

and consulted with her regarding reliance on Paxil-induced behavior both as a mens rea defense

and as a mitigating factor;14 (3) Dr. Piasecki told Sullivan that she disagreed with his research

and asked him “not to even ask those questions at the time of sentencing, because [he] would not

10 28 U.S.C. § 2254(e)(1).

11 These grounds are discussed in tandem because the facts, arguments, and analyses almost

completely overlap.

12 ECF No. 21-6 at 10-12, 16-19; Ex. 81 at 9-1, 15-18.

13 Id. at 54, 56-59; Ex. 81 at 53, 55-58.

14 Id. at 60-61; Ex. 81 at 59-60.

Case 2:14-cv-01259-JAD-VCF Documents Filed 02/26/18 Page 4 of 11

like the answers given”;15 (4) Sullivan previously had considered taking the case to trial, but he

changed his recommendation after consulting with Dr. Piasecki;16 he changed his

recommendation because Dr. Piasecki “couldn’t support a not[-]guilty[-]by[-]reason[-]of[-]

insanity [defense]” and he said: “Quite frankly, there wasn’t much there for us to go on, other

than attacking the specific intent needed for attempted murder with the use of a deadly

weapon”;17 (6) Sullivan considered Dr. Piasecki “to be one of the best psychiatrists and expert

witnesses in Northern Nevada,” and she was very well respected in the state district court;18 (7) it

was not his practice to seek a second opinion following a negative assessment from an expert,

nor did his colleagues do so to his knowledge;19 and (8) he did not seek a second opinion because

it could tip the prosecution off to the first opinion and they could use it against Dulcero at trial.20

Dulcero’s post-conviction counsel acknowledged that Dulcero’s trial counsel “actually looked

into that defense [challenging specific intent based on Paxil], then decided that he wouldn’t go

with it.”21

The state district court held that Dulcero had not been denied effective assistance of

counsel. The court noted that the issue was not whether Dulcero’s taking of Paxil actually

negated the specific intent to commit murder but was whether defense counsel had been

unconstitutionally ineffective for failing to raise it as a defense. The court recognized that

Dulcero’s trial counsel’s strategic decision not to raise the Paxil-behavior defense and instead

15 Id. at 60; Ex. 81 at 59.

16 Id. at 60-61; Ex. 81 at 59-60.

17 Id. at 61; Ex. 81 at 60.

18 Mat 61-62; Ex. 81 at 60-61.

19 Id. at 63-64; Ex. 81 at 62-63.

20 Id. at 64; Ex. 81 at 63.

21 Mat 100; Ex. 81, at 99.

Case 2:14-cv-01259-JAD-VCF Documents Filed 02/26/18 Page 5 of 11

advise his client to plead guilty was entitled to deference under Strickland v. Washington,22

Under Strickland, a petitioner asserting an ineffective-assistance-of-counsel claim must

show that his “counsel’s representation fell below an objective standard of reasonableness’*23 and

that a different outcome would have occurred but for the objectively unreasonable error.24 In the

guilty-plea context, the petitioner “must show 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.”25

In evaluating counsel’s representation, the issue is whether counsel’s strategic decision was

reasonable from his perspective at the time it was made. Strategic choices made after a

reasonable investigation Eire “virtually unchallengeable,” and a decision not to investigate further

“must be directly assessed for reasonableness in all of the circumstances, applying a heavy

measure of deference to counsel’s judgments. 5>26

While satisfying Strickland's high bar is “never an easy task,” federal habeas review of a

state court’s rejection of an ineffective-assistance claim is “doubly deferential” under AEDPA.27

That is, the federal court must take a “highly deferential” look at counsel’s performEince through

the also “highly deferential” lens of § 2254(d).28 “The question [under § 2254(d)] is whether

there is any reasonable argument that counsel satisfied Strickland’s deferential standard. »29

The state district court ultimately concluded that Dulcero had not overcome the strong

presumption under Strickland that counsel’s conduct fell within the wide range of reasonable

22 ECF No. 21-7 at 10-12; Ex. 82 at 9-11.

23 Strickland v. Washington, 466 U.S. 668, 688 (1984).

24 Id. at 691.

25 Hill v. Lockhart, 474 U.S. 52, 59 (1985).

26 Strickland, 466 U.S. at 690-91.

27 Cullen v. Pinholster, 563 U.S. 170, at 190, 202 (2011).

28 Id.

19 Harrington v. Richter, 562 U.S. 86, 105 (2011).

Case 2:14-cv-01259-JAD-VCF Document 41 Filed 02/26/18 Page 6 of 11

professional assistance. The state court’s decision was not contrary to law or an unreasonable

determination of the facts based on the evidence. Dulcero’s trial counsel had consulted with a

competent psychiatric expert witness who was well respected in the jurisdiction and by counsel.

That psychiatrist strongly disfavored any defense that Dulcero’s antidepressant was in anyway

responsible for his behavior, telling counsel that if he asked her questions about Paxil at

sentencing, he would not like her answers. Counsel then explained that he didn’t seek a second

opinion because he didn’t want the prosecution to pick up on the fact that the first opinion was

negative and then use it against Dulcero at trial. So, counsel thoroughly investigated the defense

and made the strategic decision not to pursue it. Counsel’s decision thus falls squarely within the

wide range of professional assistance, and it is “virtually unchallengeable” under Strickland.

Because Dulcero fails to satisfy Strickland’s unreasonable-performance prong, I need not—so I

do not—address the different-outcome prong. And because this reasoning applies equally to

counsel’s decisions not to raise Dulcero’s alleged Paxil-induced behavior as a defense at trial or

as a mitigating factor at sentencing, neither ground 2(b) nor 2(c) is a basis for habeas corpus

relief.

Ground 3: Ineffective assistance of appellate counsel

In ground 3, Dulcero alleges that he was denied effective assistance of appellate counsel

in violation of the Sixth and Fourteenth Amendments because his appellate counsel failed to

raise “the question of the deficient plea canvass, [or] the court’s failure to remove counsel and

obvious bias against Defendant, the improper imposition of restitution[,]” and argue that the

Nevada Supreme Court’s decision in State v. Second Judicial Dist. Court (Pulling0 should be

reconsidered.

At the time of Dulcero’s January 23, 2007, offense, NRS 193.165 provided that a deadly

weapon enhancement would impose a consecutive sentence equal to the sentence on the principal

30 State v. Second Judicial Dist. Court (Pullin), 188 P.3d 1079 (Nev. 2008).

Case 2:14-cv-01259-JAD-VCF Document 41 Filed 02/26/18 Page 7 of 11

offense.31 The statute was amended effective July 1, 2007, to provide that the sentence

enhancement instead would be set by the sentencing court within a range depending upon

specific statutory factors.32 On direct appeal, counsel raised a single issue contending that the

amendment to NRS 193.165 should apply to this case because Dulcero was sentenced in October

2007, which was after the amendment went into effect.

But on July 24, 2008, the Nevada Supreme Court held in Pullin that, as a matter of state

law, the July 1, 2007, amendment to NRS 193.165 did not apply to offenses committed prior to

the amendment’s date of effectiveness.33 So the Nevada Supreme Court rejected Dulcero’s

argument to apply the amendment and affirmed his conviction and sentence34

In his pro se state post-conviction petition, Dulcero alleged that he was denied effective

assistance of appellate counsel because counsel did not present an argument that he was denied

equal protection of the law because prosecutors allegedly did not apply the sentencing

enhancement under N.R.S. 193.165 in all cases where a deadly weapon was used.35 In the

supplemental petition filed by appointed counsel, Dulcero alleged that he was denied effective

assistance of appellate counsel because counsel did not argue that the state supreme court should

revisit its Pullin ruling on the ground that the federal due process clause required retroactive

application of the 2007 amendment to N.R.S. 193.165.36

The state district court held, among other things, that Dulcero could establish neither

deficient performance nor resulting prejudice from appellate counsel’s failure to ask the state

31 NEV. REV. STAT. § 193.165, as amended immediately prior to and after 2007 laws, c. 525, §

13.

32 Id.

33 Pullin, 188 P.3d at 1084.

34 ECF No. 19-21; Ex. 46.

35 ECF No. 20-2 at 21-25; Ex. 52 at 20-24.

36 ECF No. 20-5 at 17-19; Ex. 55 at 16-18.

Case 2:14-cv-01259-JAD-VCF Document 41 Filed 02/26/18 Page 8 of 11

supreme court to revisit Pullin on federal constitutional grounds. The court found that counsel’s

failure to challenge Pullin was not unreasonable under prevailing professional norms and that

there was not a reasonable probability that the Nevada Supreme Court would have overturned

Pullin if counsel had challenged the decision.37

On his post-conviction appeal, Dulcero argued for the first time that direct-appeal counsel

should have pursued a number of issues, including “an equal protection violation” regarding the

Pullin decision.38 The State responded that: (1) Dulcero was arguing that counsel was ineffective

for failing to raise a retroactivity argument that he did raise on direct appeal; and (2) the

remaining claims should be disregarded because they were raised for the first time on appeal.39

The state supreme court expressly addressed a claim that appellate counsel was

ineffective for failing to challenge the Pullin decision during the pendency of the direct appeal. It

held that the state district court’s factual findings were supported by substantial evidence and

were not clearly wrong, and further that Dulcero had not demonstrated that the district court had

erred as a matter of law.40

The state supreme court’s rejection of the claim that it expressly addressed was neither

contrary to, nor an unreasonable application of, Strickland. In general, when evaluating claims of

ineffective assistance of appellate counsel, the performance and prejudice prongs of the

Strickland standard partially overlap.41 Effective appellate advocacy requires weeding out

weaker issues with less likelihood of success. The failure to present a weak issue on appeal

neither falls below an objective standard of competence nor causes prejudice to the client for the

37 ECF No. 21-7 at 8-10; Ex. 82 at 7-9.

38 ECF No. 21-20 at 11, 19-20; Ex. 95 at 10, 18-19.

39 ECF No. 21-22 at 8-9; Ex. 97 at 7-8.

40 ECF No. 21-23 at 3—4; Ex. 98 at 3-4.

41 E.g., Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir. 2001); Miller v. Keeney, 882 F.2d

1428, 1434 (9th Cir. 1989).

Case 2:14-cv-01259-JAD-VCF Document 41

Filed 02/26/18 Page 9 of 11

same reason—because the omitted issue has little or no likelihood of success on appeal.42

It was not an objectively unreasonable application of Strickland to conclude that counsel

did not render deficient performance by not seeking to challenge Pullin dining the appeal and

further that Dulcero was not prejudiced as a result. It was not deficient performance for counsel

to not seek to challenge the new decision issued during the pendency of Dulcero’s appeal,

particularly on federal constitutional grounds that Dulcero had not preserved in the district court

and raised on his appeal prior to Pullin. Nor could petitioner demonstrate resulting prejudice.

Pullin still remains good law today.

The records in this district reflect that another petitioner, in an appeal also pending at the

time of Dulcero’s appeal, challenged Pullin in the state supreme court on federal constitutional

grounds and lost in an unpublished decision. In the later habeas case in this district, Judge Hicks

held that the state supreme court’s rejection of the federal constitutional challenge was neither

contrary to nor an unreasonable application of clearly established federal law.43 Dulcero’s

conclusory constitutional argument—essentially a bare reference only to equal protection—in the

state post-conviction appeal failed to establish that appellate counsel failed to pursue a potentially

winning argument seeking to overturn Pullin on federal constitutional grounds during the

pendency of Dulcero’s direct appeal.44

The state supreme court did not expressly reference any other claims of ineffective

assistance of appellate counsel. Nor did the court expressly state that it was not considering such

claims because they were not raised in the state district court. To the extent that the state

supreme court implicitly rejected the conclusorily asserted claims on their merits, that disposition

was neither contrary to, nor an unreasonable application of, Strickland.

In the alternative, to the extent that the claims were not rejected on the merits but also

have not been timely challenged herein as unexhausted or procedurally defaulted, I reject the

42 Id.

43 See Carey v. McDaniel, No. 3:10-cv-00143-LRH-WGC (D. Nev., March 29, 2013).

44 See ECF No. 21-20 at 11, 19-20; Ex. 95 at 10,18-19.

Case 2:14-cv-01259-JAD-VCF Documents Filed 02/26/18 Page 10 of 11

similarly bare claims in this court on a de novo review. A claim of ineffective assistance of

counsel for failing to pursue an issue challenging the restitution amount ordered does not present

a claim that is cognizable in a federal habeas corpus proceeding.45

Dulcero otherwise presents no apposite authority establishing that appellate counsel failed

to pursue a potentially viable direct-appeal issue as to the validity of his plea based upon a failure

to inform him of the potential restitution amount due during the plea canvass. Dulcero was

informed in the written plea agreement that he would be required to make full restitution.46 He

can’t reasonably claim that he was surprised by the amount of restitution that he was ordered to

9 pay, when his victim was an elderly woman whom he beat in the head with a bat until she was

incapacitated and then stabbed multiple times in the chest with a knife.

Dulcero’s conclusory reference in the petition to “the court’s failure to remove counsel

and obvious bias against [him]” also does not establish that counsel failed to pursue a potentially

viable issue on direct appeal in that regard. Dulcero personally declined the opportunity to seek

another judge during the plea colloquy.47 He further acknowledged that he was satisfied with the

legal services provided by the public defender, which typically is not a matter that can be raised

on appeal.48 Under Blackledge v. Allison, a collateral attack that directly contradicts the

responses at the plea proceedings “will entitle a petitioner to an evidentiary hearing only in the

most extraordinary circumstances.”49 Dulcero’s bare allegations in the federal petition therefore

45 See Bailey v. Hill, 599 F.3d 976, 980-84 (9th Cir. 2010) (a challenge to a restitution order

rather than to the validity or duration of confinement does not satisfy the custody requirement for

habeas jurisdiction, even if the petitioner otherwise is in custody); see also United States v.

Thiele, 314 F.3d 399 (9th Cir. 2002) (a federal prisoner could not pursue claims challenging

restitution in a § 2255 proceeding even if he also was seeking release from custody in his other

grounds).

46 ECF No. 18-19 at 4; Ex. 19 at 3.

47 ECF No. 18-20 at 9-10; Ex. 20 at 8-9.

49 Blackledge v. Allison, 431 U.S. 63, 80 (1977).

Id. at 5; Ex. 20 at 4.

Case 2:14-cv-01259-JAD-VCF Documents Filed 02/26/18 Page 11 of 11

establish neither deficient performance nor resulting prejudice under Strickland from appellate

counsel’s failure to pursue issues regarding counsel or the judge on direct appeal. Ground 3

therefore does not provide a basis for relief.

Conclusion

Accordingly, IT IS HEREBY ORDERED that Dulcero’s petition for a writ of habeas

corpus [ECF No. 6] is DENIED on its merits, and this action is DISMISSED with prejudice.

Because reasonable jurists would not find my decisions in this order to be debatable or wrong, I

decline to issue a certificate of appealability. The Clerk of Court is directed to ENTER

JUDGMENT in favor of respondents and against Dulcero and CLOSE THIS CASE.

DATED: February 23, 2018.

U.S. DistinctJudge Jennifer A. Dorsey

Case 2:14-cv-01259-JAD-VCF Document 46 Filed 03/21/18 Page 1 of 2

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Melvin Dosdos Dulcero,

Petitioner

2:14-cv-01259-JAD-VCF

Order Denying Application for a

Certificate of Appealability

[ECF No. 45]

D. W. Neven, et al.,

Respondents

Petitioner Melvin Dosdos Dulcero has filed an application for a certificate of appealability

(COA) following entry of final judgment dismissing all of his remaining habeas claims on the

merits after his other claims were dismissed previously on procedural grounds.

Under 28 U.S.C. § 2253(c), when the district court has denied a habeas claim on the merits,

the petitioner must make a “substantial showing of the denial of a constitutional right” in order to

obtain a COA.1 To satisfy this standard, the petitioner “must demonstrate that reasonable jurists

would find the district court's assessment of the constitutional claim debatable or wrong.”2

When the district court denies a habeas claim instead on procedural grounds without

reaching the merits of the underlying constitutional claim, the petitioner must show, in order to

obtain a COA that: (1) reasonable jurists would find it debatable whether the petition stated a valid

claim of a denial of a constitutional right; and (2) reasonable jurists would find it debatable whether

the district court was correct in its procedural ruling.3 While both showings must be made to obtain

a COA following a procedural denial, “a court may find that it can dispose of the application in a

fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir.

1999).

1 Slack, 529 U.S. at 484.

3 Id.

\ *

* f

Case 2:14-cv-01259-JAD-VCF Document 46 Filed 03/21/18 Page 2 of 2

the record and arguments.”4 Where a plain procedural bar is properly invoked, an appeal is not

warranted.5

I previously declined to issue a COA, finding that reasonable jurists would not find any

decisions in the dismissal order to be debatable or wrong.6 Dulcero does not present any

nonconclusory argument to the contrary in his application. So, I again decline to issue a COA,

finding that reasonable jurists would not find any of the decisions in this case on the merits or on

procedural grounds to be debatable or wrong.

Accordingly, IT IS HEREBY ORDERED that Dulcero’s application for a certificate of

appealability [ECF No. 45] is DENIED.

DATED: March 21, 2018

U. S. District

4 Id., at 485.

Id., at 484.

6 ECF No. 41, at 11.

-2-

Jenmmr A. Dorsey

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