United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court for a decision on the merits is petitioner
Chavez's amended petition for writ of habeas corpus under
28 U.S.C. § 2254 (ECF No. 22).
November 2006, a jury in the Second Judicial District Court
for Nevada found Chavez guilty of four counts of sexual
assault on a child. The victim of the assaults was
Chavez's daughter. The state district court sentenced
Chavez to four consecutive terms of life in prison with
minimum parole eligibility after twenty years on each count.
direct appeal, Chavez raised claims asserting violations of
the Confrontation Clause of the Sixth Amendment, violations
of Nevada's rules of evidence, a claim of juror
misconduct, and a violation of the Eighth Amendment's
prohibition against cruel and unusual punishment. The Nevada
Supreme Court affirmed Chavez's conviction and sentence.
subsequently filed a proper person petition for writ of
habeas corpus. After appointment of counsel, Chavez filed a
supplemental petition. The state court held an evidentiary
hearing, and then entered an order denying the state
petition. Chavez appealed.
appeal, Chavez raised various claims of ineffective
assistance of counsel, and asserted a claim of cumulative
error. The Nevada Supreme Court affirmed the state district
court's order denying the state petition.
October 2, 2013, this Court received a federal habeas
petition from Chavez initiating this proceeding. On December
23, 2013, Chavez filed, with the assistance of appointed
counsel, an amended petition. Pursuant to a motion to dismiss
filed by respondents, the Court issued an order for Chavez to
show cause why Ground Two of his amended petition should not
be dismissed as procedurally defaulted. After this Court
found Chavez could not make such a showing and dismissed the
claim, respondents filed an answer to Grounds One and Three.
Chavez subsequently filed his reply. Grounds One and Three
are now before the Court for a decision on the merits.
STANDARDS OF REVIEW
action is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the
standard of review under 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).
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite that reached by the Supreme Court on a
question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state-court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409.
“[A] federal habeas court may not “issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly.” Id. at 411.
Supreme Court has explained that “[a] federal
court's collateral review of a state-court decision must
be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court
rulings, ' and ‘demands that state-court decisions
be given the benefit of the doubt.'” Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “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, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
has emphasized "that even a strong case for relief does
not mean the state court's contrary conclusion was
unreasonable." Id. (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v.
Pinholster, 563 U.S. 170, 181 (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
federal court may not second-guess a state court's
fact-finding process unless, after review of the state-court
record, it determines that the state court was not merely
wrong, but actually unreasonable.” Taylor v.
Maddox, 366 F.3d 992, 999 (9th Cir. 2004);
see also Miller-El, 537 U.S. at 340 (“[A]
decision adjudicated on the merits in a state court and based
on a factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding, §
2254(d)(2).”). Because de novo review is more
favorable to the petitioner, federal courts can deny writs of
habeas corpus under § 2254 by engaging in de
novo review rather than applying the deferential AEDPA
standard. Berghuis v. Thompkins, 560 U.S. 370, 390
Ground One, Chavez alleges that the state trial court
violated his rights under the Confrontation Clause of the
Sixth Amendment by admitting statements by the deceased
victim, which included her preliminary hearing testimony, her
video-taped statements to the police, and other statements to
the Confrontation Clause of the Sixth Amendment, testimonial
statements of witnesses not present a trial are admissible
“only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to
cross-examine.” Crawford v. Washington, 541
U.S. 36, 59 (2004). “To be sure, the Clause's
ultimate goal is to ensure reliability of evidence, but it is
a procedural rather than a substantive guarantee.”
Id. at 61. The Confrontation Clause guarantees only
“an opportunity for effective cross-examination, not
cross-examination that is effective whatever way, and to
whatever extent, the defense might wish.” Delaware
v. Fensterer, 474 U.S. 15, 20 (1985).
victim in this case, Chavez's daughter, testified at the
preliminary hearing but died prior to trial. Chavez filed a
pre-trial motion to dismiss premised on an argument that her
preliminary hearing testimony and her statements to law
enforcement, family members, and various health care
providers were all inadmissible at trial because the
presentation of such evidence would violate either the
Confrontation Clause or rules of evidence prohibiting the
introduction of hearsay. (ECF No. 16-7.) The trial court
ruled that statements the victim made to “the forensic
nurse and to her siblings would not be admitted, but that the
preliminary hearing testimony and statements the victim made
to law enforcement was admissible because Chavez had an
opportunity to cross-examine her on those statements at the
preliminary hearing. (ECF No. 16-14, p. 25-26.) With respect to
statements the victim made to her mother, the court suggested
that those statements would most likely be admissible at
trial. Id. at 26-27.
trial, the victim's preliminary hearing testimony was
read to the jury. (ECF No. 17-1 at 146-48.) In addition, a
police sergeant (Dreelan) testified that the victim had told
him that her father had sexually assaulted her the day before
he interviewed her. (ECF No. 17 at 104.) The prosecution was
also permitted to play a videotape of a police detective
(Armitage) interviewing the victim about the sexual assaults
and present the detective's testimony about what the
victim told her during a second interview. (ECF No. 17-1 at
153, 157-59.) A marriage and family therapist (Evarts) who
treated the victim, testified that the victim had told her
“that at five years old, her dad had ripped open her
vagina.” (ECF No. 16-16 at 35-36.)
direct appeal, Chavez argued that it was constitutional error
for the trial court to admit into evidence (1) the
preliminary hearing testimony, (2) the videotape of the
interview and the victim's statements to Dreelan and to
Armitage, and (3) the victim's statements to Evarts.
denying Chavez's Confrontation Clause claim, the Nevada
Supreme Court first discussed the rule announced in
Crawford, then surveyed its own Confrontation Clause
jurisprudence. Chavez v. State, 213 P.3d 476, 483
(Nev. 2009). With respect to the trial court's admission
of the preliminary hearing testimony and the victim's
statements to law enforcement, the court determined that the
statements were testimonial and that the declarant was
unavailable at the time of trial. Id. at 484, 486.
the defendant's opportunity to cross-examine the witness,
the Nevada Supreme Court stated as follows:
Chavez argues that the limited nature of a preliminary
hearing does not provide a defendant an adequate opportunity
to cross-examine a witness appearing against him. He urges
this court to adopt the standards set forth in People v.
Fry, 92 P.3d 970 (Colo.2004), and State v.