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Rosas v. McDaniel

United States District Court, D. Nevada

August 26, 2014

FABIAN FUENTES ROSAS, Petitioner,
v.
E.K. McDANIEL, et al., Respondents.

ORDER

ROGER L. HUNT, District Judge.

This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. ยง 2254, by a Nevada state prisoner represented by counsel. Before the Court is respondents' motion to dismiss the second amended petition (ECF No. 78).

I. Procedural History

On December 28, 1999, the State charged petitioner and his co-defendant, Michael Freed, by information with the following: Count 1, open murder with the use of a deadly weapon; Count 2, open murder with the use of a deadly weapon; Count 3, accessory to open murder (co-defendant only); Count 4, in the alternative to Count 1, principal to open murder with use of a deadly weapon; Count 5, in the alternative to Count 2, principle to open murder with use of a deadly weapon; Count 6, conspiracy to commit open murder; Count 7, robbery with the use of a deadly weapon; Count 8, in the alternative to Count 7, principal to robbery; and Count 9, conspiracy to violate the Uniform Controlled Substances Act. (Exhibit 13).[1] Petitioner pled not guilty to all counts. (Exhibit 12).

On August 16, 2000, the State filed an amended criminal information against petitioner only, charging him with the following: Count 1, open murder with the use of a deadly weapon; Count 2, open murder with the use of a deadly weapon; Count 3, in the alternative to Count 1, principal to open murder with the use of a deadly weapon; Count 4, in the alternative to Count 2, principal to open murder use of a deadly weapon; Count 5, conspiracy to commit open murder; Count 6, robbery with the use of a deadly weapon; Count 7, in the alternative to Count 6, principal to robbery; and Count 8, conspiracy to violate the Uniform Controlled Substances Act. (Exhibit 59).

Petitioner's jury trial commenced on September 5, 2000. (Exhibit 81). The jury found petitioner guilty of Counts 1, 2, 5, 6, and 8. (Exhibits 104, 106).

The penalty phase commenced on September 20, 2000. (Exhibit 110). For the death of Gerald Glade Spaeth, the jury imposed a sentence of life without the possibility of parole, with an equal and consecutive term for the use of a deadly weapon. (Exhibit 111). The jury returned an identical verdict for the death of Elza Raymond Wire. ( Id. ). On October 4, 2000, the State filed a notice of habitual criminal against Rosas. (Exhibit 113).

The Court sentenced Rosas on November 27, 2000, as follows: On Count 1, murder in the first degree with the use of a deadly weapon, life without the possibility of parole, with an equal and consecutive term for the use of a deadly weapon; on Count 2, murder in the first degree with the use of a deadly weapon, life without the possibility of parole, with an equal and consecutive term for the use of a deadly weapon, concurrent to Count 1; on Count 5, conspiracy to commit murder, 48-120 months, consecutive to Count 2; on Count 6, robbery with the use of a deadly weapon, 72-180 months, with an equal and consecutive term for the use of a deadly weapon, consecutive to Count 5; and on Count 8, conspiracy to violate the Uniformed Controlled Substances Act, 24-60 months, consecutive to Count 6. (Exhibit 117). The Court also found Rosas to be a habitual criminal, and sentenced him to 5-20 years, consecutive to Count 8. (Exhibit 117). On November 29, 2000, the court filed the judgment of conviction. (Exhibit 118).

Petitioner appealed from the conviction. (Exhibit 119 and 131). On December 17, 2001, the Nevada Supreme Court affirmed the conviction. (Exhibit 138). Petitioner petitioned for rehearing, which the Nevada Supreme Court denied. (Exhibits 139 and 140). The Nevada Supreme Court issued a clerical correction to its opinion. (Exhibit 140). On May 28, 2002, remittitur issued. (Exhibit 141).

Petitioner filed a pro se post-conviction habeas petition in the district court on August 26, 2002. (Exhibit 147). Following appointment of post-conviction counsel, petitioner filed his first supplement to his petition on November 25, 2002. (Exhibit 156). On June 13, 2003, petitioner filed a second supplement to his petition. (Exhibit 168). Following an evidentiary hearing, the state district court denied the state habeas petition. (Exhibits 171 and 172).

Petitioner appealed the denial of his state post-conviction habeas petition. (Exhibit 173 and 182). The Nevada Supreme Court affirmed the state district court's denial of the post-conviction petition on June 22, 2005. (Exhibit 186). On July 19, 2005, remittitur issued. (Exhibit 188).

On August 22, 2005, petitioner dispatched his pro se federal habeas petition to a correctional officer for mailing. (ECF No. 7, at p. 1). Respondents moved to dismiss the original petition. (ECF No. 11). Petitioner moved for the appointment of counsel and an evidentiary hearing. (ECF Nos. 18 & 19). On March 29, 2006, the Court granted petitioner's motion for the appointment of counsel and denied respondents' motion to dismiss without prejudice. (ECF No. 22). The first amended federal petition, filed November 20, 2006, raised the following grounds for relief:

Ground One: Rosas was denied his rights to due process of law and a fair trial under the Fourteenth Amendment when the State prosecuted him for the Domino's murders in breach of the plea agreement precluding such prosecutions.
Ground Two: Rosas was denied his rights to due process of law and a fair trial under the Fourteenth Amendment to the United States Constitution when the prosecutor raised and impeached an alibi defense in his case in chief, thereby improperly shifting the burden of proof to the defendant.
Ground Three: Rosas was denied his right to the effective assistance of appellate counsel under the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to include the prosecution's use of a peremptory challenge to exclude a Hispanic from serving on the jury in violation of Batson v. Kentucky , 476 U.S. 79 (1986), as a direct appeal issue.
Ground Four: Rosas was denied his right to the effective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to move for a change of venue after a prospective juror informed the court and counsel that Elko, Nevada's white and Mexican communities were racially split as to Rosas' guilt of the crimes charged, the former favoring convictions and the latter acquittals.
Ground Five: Rosas was denied his right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to investigate (1) a leading suspect in the killings and (2) a witness who could have impeached Liana Marie Barraza and, therefore, failed to prepare a meaningful defense.
Ground Six: The State's failure to disclose (1) the prosecution of J.J. Arnold Horner as an ex-felon in possession of a 9MM pistol during the summer of 1997, and its consequent seizure of such 9MM pistol and destruction thereof at closure of the case and (2) the investigation of Horner for stealing dynamite and threatening various persons and institutions with it denied Rosas his rights to due ...

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