United States District Court, D. Nevada
action is a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, by Michael Duane Wilson, a Nevada
prisoner. The case is before the court with respect to the
merits of the claims remaining in Wilson's first amended
petition after the resolution of respondents' motion to
dismiss. The court will deny Wilson's petition.
was convicted on October 1, 2009, following a jury trial in
Nevada's Eighth Judicial District Court, in Clark County,
of eight counts of lewdness with a child under the age of
fourteen, and one count of unlawful contact with a child
under the age of sixteen. See Judgment of
Conviction, Exhibit 26 (ECF No. 18-4) (The exhibits referred
to in this order were filed by Wilson, and are located in the
record at ECF Nos. 15, 16, 17, 18 and 19.). He was sentenced
to eight concurrent terms of ten years to life in prison for
the lewdness convictions, and, for the conviction of unlawful
contact with a child, he was sentenced to a concurrent
one-year term. See id.
Nevada Supreme Court affirmed the judgment of conviction on
December 9, 2011. See id. The court denied
Wilson's petition for rehearing on May 9, 2012.
See Order Denying Rehearing, Exhibit 37 (ECF No.
16, 2012, Wilson filed a post-conviction petition for writ of
habeas corpus in the state district court. See
Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit
39 (ECF No. 19-3). The state district court denied the
petition, in a written order, on February 4, 2013.
See Findings of Fact, Conclusions of Law and Order,
Exhibit 44 (ECF No. 19-8). Wilson appealed, and the Nevada
Supreme Court affirmed on January 15, 2014. See
Order of Affirmance, Exhibit 48 (ECF No. 19-12).
court received Wilson's federal habeas petition,
initiating this action pro se, on February 4, 2014
(ECF No. 4). The court granted Wilson's motion for
appointment of counsel, and appointed counsel to represent
him. See Order entered February 18, 2014 (ECF No.
3). With counsel, Wilson filed a first amended habeas
petition (ECF No. 14) on January 29, 2015. Wilson's first
amended petition -- the operative petition in the case --
asserts the following claims:
1a. Wilson's federal constitutional rights were violated
because “the State of Nevada produced insufficient
evidence at trial to support a conviction for lewdness [with]
a minor and unlawful contact with a child.” First
Amended Petition (ECF No. 14), p. 12.
1b. “The trial court erroneously denied Wilson's
pretrial motions challenging jurisdiction and requesting
severance of the counts based on insufficiency of the
evidence.” Id. at 16.
1c. “The trial court applied an incorrect standard of
review and erroneously denied Wilson's motion for
judgment of acquittal or new trial.” Id. at
2. “Wilson's sentence violated the Double Jeopardy
Clause of the Fifth Amendment and the presumption against the
pyramiding of punishment for a single transaction and
occurrence.” Id. at 20.
3. “Wilson's constitutional rights to due process
and a fair trial under the Fifth, Sixth and Fourteenth
Amendments were violated when A.S. and C.S. were allowed to
testify.” Id. at 23.
4. Wilson's federal constitutional rights were violated
because of prosecutorial misconduct during closing arguments.
Id. at 25.
5a. Trial counsel was ineffective, in violation of
Wilson's federal constitutional rights, with respect to
her cross-examination of C.S. Id. at 29.
5b. Trial counsel was ineffective, in violation of
Wilson's federal constitutional rights, because she
“failed to seek dismissal of all charges because Wilson
did not “willfully and lewdly commit any lewd or
lascivious act” pursuant to Nevada Revised Statute
§ 201.230.” Id. at 30.
5c. Trial counsel was ineffective, in violation of
Wilson's federal constitutional rights, because she
“failed to object to multiple instances of
prosecutorial misconduct during closing arguments.”
Id. at 30.
6a. Appellate counsel was ineffective, in violation of
Wilson's federal constitutional rights, because he
“failed to include in Wilson's direct appeal the
fact that the State of Nevada did not prove [with respect to]
each element of the crime of lewdness with a minor that
Wilson “willfully and lewdly committed a lewd or
lascivious act.” Id. at 31.
6b. Appellate counsel was ineffective, in violation of
Wilson's federal constitutional rights, with respect to
his presentation of Wilson's petition for rehearing.
Id. at 32-33.
April 1, 2015, respondents filed a motion to dismiss (ECF No.
21), arguing that Claims 1b, 1c and 3, and part of Claim 6b,
were unexhausted in state court, and should be dismissed, and
that Claims 1b, 1c, 2, 3, 6a and 6b failed to state claims
cognizable in this federal habeas corpus action. The court
ruled on the motion to dismiss on November 9, 2015, granting
it in part and denying it in part; the court found Claims 1b,
1c and 3 to be unexhausted in state court, and granted Wilson
an opportunity to make an election to either abandon those
claims or move for a stay of this action to allow him to
exhaust those claims in state court. See Order
entered November 9, 2015 (ECF No. 25). Wilson filed a motion
for reconsideration (ECF No. 26), seeking reconsideration of
the court's November 9, 2015, order. The court denied the
motion for reconsideration. See Order entered April
12, 2016 (ECF No. 27).
filed a declaration, abandoning unexhausted Claims 1b, 1c and
3. See Petitioner's Declaration of Abandonment
(ECF No. 29); see also Notice to Court of Intent to
Abandon Claims (ECF No. 28).
then filed an answer (ECF No 31) on August 4, 2016,
responding to the claims remaining in Wilson's first
amended petition. Wilson filed a reply on November 30, 2016
(ECF No. 36).
Standard of Review
U.S.C. § 2254(d) sets forth the primary standard of
review applicable in this case under the Antiterrorism and
Effective Death Penalty Act (AEDPA):
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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
court decision is contrary to clearly established Supreme
Court precedent, within the meaning of 28 U.S.C. § 2254,
“if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court's]
cases” or “if the state court confronts a set of
facts that are materially indistinguishable from a decision
of [the Supreme Court] and nevertheless arrives at a result
different from [the Supreme Court's] precedent.”
Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and
citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
court decision is an unreasonable application of clearly
established Supreme Court precedent, within the meaning of 28
U.S.C. § 2254(d), “if the state court identifies
the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.”
Lockyer, 538 U.S. at 75 (quoting Williams,
529 U.S. at 413). The “unreasonable application”
clause requires the state court decision to be more than
incorrect or erroneous; the state court's application of
clearly established law must be objectively unreasonable.
Id. (quoting Williams, 529 U.S. at 409).
Supreme Court has instructed that “[a] state
court's determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists
could disagree' on the correctness of the state
court's decision.” Harrington v. Richter,
562 U.S. 86, 131 S.Ct. 770, 786 (2011) (citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme
Court has stated “that even a strong case for relief
does not mean the state court's contrary conclusion was
unreasonable.” Id. (citing Lockyer,
538 U.S. at 75); see also Cullen v. Pinholster, __
U.S. __, 131 S.Ct. 1388, 1398 (2011) (describing the AEDPA
standard as “a difficult to meet and highly deferential
standard for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the
doubt” (internal quotation marks and citations
Claim 1a, Wilson claims that his federal constitutional
rights were violated because “the State of Nevada
produced insufficient evidence at trial to support a
conviction for lewdness [with] a minor and unlawful contact
with a child.” First Amended Petition (ECF No. 14), p.
asserted this claim on his direct appeal (see
Appellant's Opening Brief, Exhibit 29, pp. 10-18 (ECF No.
18-7, pp. 21-29)), and the Nevada Supreme Court ruled as
Wilson argues that the State presented insufficient evidence
because it failed to prove that his acts with the children
were sexual, and nonsexual acts cannot be considered lewd or
lascivious for purposes of NRS 201.230. Although we agree
that the statute requires a lewd or lascivious act and that a
lewd act must be accompanied by the necessary sexual intent,
we concluded that a rational juror could find beyond a
reasonable doubt that Wilson's conduct was lewd or
lascivious, and he acted with the necessary sexual intent.
When reviewing a challenge to the sufficiency of the
evidence, we review the evidence in the light most favorable
to the prosecution and determine whether any rational juror
could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); McNair v. State, 108 Nev. 53, 56, 825
P.2d 571, 573 (1992). It is for the jury to assess the
witnesses' credibility and determine the weight to give
their testimony, and the jury's verdict will not be
disturbed on appeal where substantial evidence supports the
verdict. McNair, 108 Nev. at 56, 825 P.2d at 573;
Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20
NRS 201.230(1) defines the crime of lewdness with a minor
under 14 years:
A person who willfully and lewdly commits any lewd or
lascivious act, other than acts constituting the crime
of sexual assault, upon or with the body, or any part or
member thereof, of a child under the age of 14 years, with
the intent of arousing, appealing to, or gratifying the lust
or passions or sexual desires of that person or of that
child, is guilty of lewdness with a child.
(Emphasis added.) The material elements of the crime of
lewdness with a minor are (1) a lewd or lascivious act, (2)
upon or with the child's body or any part of the
child's body, (3) the child's age, and (4) the intent
to arouse, appeal to, or gratify, the lust or passion of the
accused or the child. NRS 201.230(1); Gay v.
Sheriff, 89 Nev. 118, 119 n.1, 508 P.2d 1, 2 n.1 (1973);
see also 43 C.J.S. Infants § 120
We conclude that the State presented sufficient evidence that
Wilson's conduct was lewd or lascivious, and was sexually
motivated as required by NRS 201.230(1). The charges against
Wilson involved two young girls who are sisters, A.S. and
C.S. Wilson lived next door to the girls with his girlfriend
Tonja, her teenage daughter J.F., and other family members.
From February 2007 to early 2008, J.F. and Tonja babysat A.S.
and C.S. while their mother worked the night shift as a
cabdriver. Occasionally, the two girls would sleep at
Wilson's home while their mother worked. A.S. and C.S.
were 8 and 10 years old, respectively, when this childcare
During that time, Wilson at various times touched A.S.'s
genitals, breasts, buttocks, and the “roof” of
her buttocks. Wilson also showed her pornography on his cell
phone and on the walls of his garage, though A.S. explained
that he did not touch her during those incidents. Similarly,
Wilson touched C.S.'s buttocks, clavicle area, sides of
her breasts, and thighs. He also touched her on her
shoulders, lower back, and sides of her body while showing
her pornography. Additionally, he told both girls that he
would hurt their mother if they told anyone about the
touchings. Based on this evidence, we conclude that a
rational juror could find beyond a reasonable doubt that
Wilson committed eight counts of lewdness with a minor under
the age of 14 years.
of Affirmance, Exhibit 33, pp. 2-5 (ECF No. 18-11, pp. 3-6)
federal habeas petitioner who alleges that the evidence at
trial was insufficient to support his conviction states a
constitutional claim that, if proven, entitles him to federal
habeas relief. See Jackson v. Virginia, 443 U.S.
307, 321, 324 (1979). The Supreme Court has emphasized,
however, that “Jackson claims face a high bar
in federal habeas proceedings because they are subject to two
layers of judicial deference.” Coleman v.
Johnson, 132 S.Ct. 2060');">132 S.Ct. 2060, 2062 (2012) (per curiam).
federal habeas court reviewing a state court conviction does
not simply determine whether the evidence established guilt
beyond a reasonable doubt. See Payne v. Borg, 982
F.2d 335, 338 (9th Cir. 1993); see also Coleman, 132
S.Ct. at 2065. Rather, the question is “whether,
‘after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.'” Payne, 982 F.2d at 338
(quoting Jackson, 443 U.S. at 319) (emphasis in
original). Only if no rational trier of fact could have found
proof of guilt beyond a reasonable doubt is habeas relief
warranted. Jackson, 443 U.S. at 324; Payne,
982 F.2d at 338. In applying this standard, a jury's
credibility determinations are entitled to near-total
deference. See Schlup v. Delo, 513 U.S. 298, 330
(1995); Bruce v. Terhune, 376 F.3d 950, 957 (9th
U.S.C. § 2254(d) imposes a second layer of deference:
the state court's decision denying a sufficiency of the
evidence claim may not be overturned on federal habeas unless
the decision was “objectively unreasonable.”
See Williams, 529 U.S. at 409-10; Parker v.
Matthews, 132 S.Ct. 2148');">132 S.Ct. 2148, 2152 (2012) (quoting
Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per
NRS 201.230, the crime of lewdness with a child under the age
of fourteen has the following elements: (1) a lewd or
lascivious act; (2) upon or with the child's body or any
part of the child's body; (3) the child being under the
age of fourteen; and (4) intent to arouse, appeal to, or
gratify, the lust or passion of the accused or the child.
See Order of Affirmance, Exhibit 33, pp. 3-5 (ECF No
18-11, pp. 3-6). The Nevada Supreme Court's construction
of this Nevada law is beyond the scope of this federal habeas
action. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (federal habeas court cannot reexamine a state
court's interpretation of state law).
respect to the crime of unlawful contact with a child, NRS
A person who, without lawful authority, willfully and
maliciously engages in a course of conduct with a child who
is under 16 years of age and who is at least 5 years younger
than the person which would cause a reasonable child of like
age to feel terrorized, frightened, intimidated or harassed,
and which actually causes the child to feel terrorized,
frightened, intimidated or harassed, commits the crime of
unlawful contact with a child.
was ample evidence presented at trial to support Wilson's
convictions. Most importantly, CS and AS testified that
Wilson touched them -- CS, then ten to eleven years old, and
AS, then eight to nine years old -- in a manner the jury
could reasonably have found to be lewd, including as follows:
- CS on her breasts (Count 1) (Testimony of CS, Trial
Transcript, August 4, 2009, Exhibit 17, pp. 128-31 (ECF No.
17, pp. 129-32));
- CS on her shoulders (Count 2) (id. at 125, 148-51
(ECF No. 17, pp. 126, 149-52));
- CS on her waist, sides, and sides of her breasts (Count 3)
(id. at 126-27, 130-31, 151-52 (ECF No. 17, pp.
127-28, 131-32, 152-53));
- CS on her upper thighs (Count 4) (id. at 129-30,
142, 145-47 (ECF No. 17, pp. 130-31, 143, 146-48));
- CS on her buttocks, with his foot (Count 6) (id.
at 127, 144-45, 152-53 (ECF No. 17, pp. 128, 145-46,
- AS on her chest (Count 8) (Testimony of AS, Trial
Transcript, August 4, 2009, Exhibit 17, pp. 59-60, 70, 73-76
(ECF No. 17, pp. 60-61, 71, 74-77) (AS referred to her
breasts as her “chi chis, ” see id. at
56 (ECF No. 17, p. 57));
- AS on her buttocks (Count 9) (id. at 60, 76-79
(ECF No. 17, pp. 61, 77-80) (AS referred to her buttocks as
her "buns, " see id. at 56 (ECF No. 17, p.
- AS in the genital area (Count 11) (id. at 57-59,
79-82, 85, 89 (ECF No. 17, pp. 58-60, 80-83, 86, 90) (AS
referred to her vaginal region as her “private part,
” see id. at 55-56 (ECF No. 17, pp. 56-57)).
AS testified that they felt uncomfortable when Wilson touched
them. For example, AS testified as follows regarding how she
felt when Wilson touched her genital area:
Q. ... Okay. How did it feel when his finger poked your
A. Well, it felt uncomfortable. And, well, it just like
shocked me and I really don't remember.
of AS, Trial Transcript, August 4, 2009, Exhibit 17, p. 59
(ECF No. 17, p. 60); see also Id. at 80 (ECF No. 17,
p. 81). AS also testified that she felt “[r]eally
uncomfortable” when Wilson touched her breasts.
Id. at 60 (ECF No. 17, p. 61). CS testified that
when Wilson touch her near her buttocks, she felt
“scared.” Testimony of CS, Trial Transcript,
August 4, 2009, Exhibit 17, p. 126 (ECF No. 17, p. 127);
see also Id. at 122, 125-30 (ECF No. 17, pp. 123,
126-31). Ja'nae testified that when Wilson would take CS
and AS to a park, CS “really wanted [Ja'nae] to go,
” because she “was scared to go alone.”
Testimony of Ja'nae Foster, Trial Transcript, August 5,
2009, Exhibit 18, p. 112 (ECF No. 17-1, p. 113).
witnesses, who lived with Wilson at the time, corroborated
the victims' testimony, testifying that they saw Wilson
touch them inappropriately. Roberta Foster testified as
Q. Did you see him do anything to [CS]?
A. Yes, I did.
Q. What did you see him do to [CS]?
A. He touched her breasts, tried to get his hands down the
top of her shirt. I mean touching her breasts through her
shirt. And then he tried putting his hand down there.
He'd run his hands up the top of her -- her shorts, run
his hand up, and he would reach over and like, you know, go
like this, kind of like that on the side of her breasts.
Q. And, I'm sorry, for the record because we are tape
recorded in here, when you said that he put his hands on her
breasts and then down her shirt like this, were your hands in
the areas of the clavicle? So under her shoulder, but above
her actual breast in the front --
Q. -- of her chest?
A. Yes, that's where he -- yeah.
Q. Okay. And you're doing that again with your hand just
Q. -- for the record. And then when you were doing the
pinching motion and describing that his hands were on the
side of her breasts, that's on the side of her body,
under her armpit, but above her waist; is that correct?
A. Yes, on the side of the breast, you know, there. The --
the -- you know where it's heavier, you know --
Q. Okay. Did you see him do anything to [AS]?
Q. What did you see him do?
A. Even though she wasn't developed, he put his hands --
he took both of his hands down her shirt, and then would like