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Wilson v. LeGrand

United States District Court, D. Nevada

January 4, 2017

MICHAEL DUANE WILSON, Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

          ORDER

         Introduction

         This 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.

         Background

         Wilson 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.

         The 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. 19-1).

         On July 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).

         This 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 18.
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.

         On 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).

         Wilson 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).

         Respondents 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).

         Discussion Standard of Review

         28 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; or
(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).

         A state 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)).

         A state 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).

         The 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 omitted)).

         Claim 1a

         In 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. 12.

         Wilson 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 follows:

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 (1981).
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 (2004).
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 arrangement began.
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.

         Order of Affirmance, Exhibit 33, pp. 2-5 (ECF No. 18-11, pp. 3-6) (footnote omitted).

         A 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).

         A 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 Cir. 2004).

         28 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 curiam)).

         Under 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).

         With respect to the crime of unlawful contact with a child, NRS 207.260(1) provides:

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.

         NRS 207.260(1).

         There 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, 153-54));
- 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. 57));
- 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)).

         CS and 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 private part?
A. Well, it felt uncomfortable. And, well, it just like shocked me and I really don't remember.

         Testimony 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).

         Two witnesses, who lived with Wilson at the time, corroborated the victims' testimony, testifying that they saw Wilson touch them inappropriately. Roberta Foster testified as follows:

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 --
A. Yes.
Q. -- of her chest?
A. Yes, that's where he -- yeah.
Q. Okay. And you're doing that again with your hand just --
A. Right.
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]?
A. Yes.
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 ...

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