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Sandoval v. Palmer

United States District Court, D. Nevada

March 24, 2015

LAWRENCE J. SANDOVAL, Petitioner,
v.
JACK PALMER, et al., Respondents.

ORDER

ROBERT C. JONES, District Judge.

This is a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought by a Nevada state prisoner (ECF #7). Now before the court is respondents' answer to the remaining grounds for relief (ECF #26). Petitioner filed a reply to the answer (ECF #37).

I. Procedural History and Background

On February 4, 2005, the State charged petitioner with 72 counts of sexual assault with a minor under 16 years of age, 30 counts of sexual assault, and 12 counts of statutory sexual seduction. Exh. 2.[1] An amended information filed November 16, 2005 also added one count of child abuse. Exh. 13. Petitioner was convicted, pursuant to a jury trial, of 31 counts of sexual assault with a minor under sixteen years of age, 27 counts of sexual assault, and one count of child abuse. Exh. 33. He was sentenced to 31 concurrent terms of 20 years to life in prison, 27 concurrent terms of ten years to life, and a consecutive term of one to six years. Id.

Petitioner appealed. Exh. 27. On August 7, 2007, the Nevada Supreme Court affirmed in part and reversed in part his convictions. Exh. 49. The Nevada Supreme Court determined that insufficient evidence supported six counts of sexual assault with a minor under the age of 16 as well as six counts of sexual assault, and therefore, it reversed the convictions for those counts. Id. The Nevada Supreme Court rejected petitioner's remaining claims. Id.

Petitioner filed a state postconviction petition for writ of habeas corpus on December 28, 2007. Exh. 53. The state district court denied the petition. Exh. 64. Petitioner filed an untimely appeal, which the Nevada Supreme Court dismissed on that basis. Exh. 71.

On January 27, 2009, petitioner dispatched his federal habeas petition (ECF #7). Pursuant to petitioner's response to a show-cause order, this court found some of petitioner's claims unexhausted and directed petitioner to either file a motion to dismiss the petition in whole or in part, or stipulate that his unexhausted claims would be procedurally barred in state court (ECF #17). Petitioner moved for dismissal of the unexhausted claims without prejudice and a stay (ECF #18). This court dismissed all but portions of three claims and granted the stay on December 8, 2009 (ECF #19).

On January 25, 2010, petitioner filed a second state postconviction petition. Exh. 84. The Nevada Supreme Court affirmed the dismissal of the petition as procedurally barred on November 1, 2010, and remittitur issued on January 3, 2011. Exhs. 96, 100.

On July 5, 2011, this court granted petitioner's motion to reopen the case (ECF #24). As petitioner had not filed a motion to amend, this court ordered respondents to respond to the three remaining claims: ground 1 - challenge to the sufficiency of the evidence; ground 2 - claims of prosecutorial misconduct alleging that the prosecutor improperly commented that petitioner's two daughters were lying to protect their father and that the prosecutor improperly commented that the victim had testified truthfully; and ground 7 - that petitioner's confession was involuntary because he was under the influence of drugs and was sleep-deprived (ECF #24, pp. 2-3).

Respondents now answer the remaining portions of grounds 1, 2, and 7 (ECF #26).

II. Legal Standards

A. Antiterrorism and Effective Death Penalty Act

28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:

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 ...

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