Lawrence Green v. Dwight Neven , 494 F. App'x 769 ( 2012 )

FILED
NOT FOR PUBLICATION OCT 01 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAWRENCE D. GREEN, No. 10-15429
Petitioner - Appellant, D.C. No. 2:07-cv-01108-RCJ-RJJ
v.
MEMORANDUM*
DWIGHT NEVEN, Warden; ATTORNEY
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Submitted September 13, 2012**
San Francisco, California
Before: WALLACE, GRABER, and BERZON, Circuit Judges.
*
This disposition is not appropriate for publication and is
not precedent except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
Lawrence D. Green appeals the district court’s denial of his 28 U.S.C. §
2254 habeas petition challenging his Nevada conviction for two counts of grand
larceny and two counts of burglary.
1. For each grand larceny count, at least one witness testified to the goods’
value, using either a report or a receipt created shortly after the theft to refresh his
or her recollection at trial. The Nevada Supreme Court’s determination that this
evidence was sufficient to show that the $250 grand larceny threshold was met was
a reasonable application of Jackson v. Virginia, 443 U.S. 307 (1979).
2. The Nevada Supreme Court did not unreasonably apply, or reach a
decision contrary to, federal law in denying Green’s ineffective assistance of
counsel claims.
Green has not shown that the surveillance video he claims his counsel
should have obtained actually existed, or that such video would have helped him
had it existed. He has therefore neither demonstrated that his lawyer was
ineffective for not introducing the surveillance tapes nor established a “reasonable
probability” of a contrary outcome at trial had trial counsel sought to introduce the
surveillance tapes. See Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).
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Green has also not established prejudice from his counsel’s failure to object
to testimony regarding Green’s prior trespass warnings. The likely prejudicial
effect of the testimony was minimal, given the weight of the evidence supporting
Green’s presence, the theft, and the value of the goods on October 13 and 18. As
to the related claim regarding counsel’s failure to obtain discovery of the forms
documenting Green’s prior trespass warnings, even if Green never signed one of
the forms, proof of that circumstance would not have had a reasonable likelihood
of affecting the jury verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Nor has Green established that the Nevada courts unreasonably denied his
claim concerning the failure of his counsel to challenge the trial court’s denial of
Green’s motion to sever the October 13 counts from the October 18 counts.
Nevada law permits joinder of criminal counts that are “part[] of a common
scheme or plan.” Nev. Rev. Stat. § 173.115. The Nevada Supreme Court cited
ample reasons, supported by the record, for holding the two incidents part of a
common scheme to steal from supermarkets by bagging unpaid groceries, placing
them in a cart, and exiting the store without paying. Counsel had ample reason for
not appealing the weak severance claim. See Harrington v. Richter, 131 S. Ct.
770, 789 (2011); Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir. 2001).
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3. Green contends that the trial judge violated Nevada law in sentencing him
as a habitual offender, resulting in a due process violation. Nevada law requires no
more than that the sentencing court “exercise its discretion and weigh the
appropriate factors for and against the habitual criminal statute before adjudicating
a person as a habitual criminal.” Hughes v. State, 996 P.2d 890, 893 (Nev. 2000)
(per curiam). The record shows that Green’s sentencing proceedings met these
minimal requirements, notwithstanding the judge’s animosity toward Green and
use of some hyperbole regarding Green’s danger to society. The Nevada Supreme
Court’s conclusion that the sentencing court exercised its discretion in adjudicating
Green a habitual offender was therefore not contrary to, or an unreasonable
application of, clearly established federal law. See Hicks v. Oklahoma, 447 U.S.
343 (1980).
AFFIRMED.
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