United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE
the court for a decision on the merits is an application for
a writ of habeas corpus filed by Carlos Noguera, a Nevada
prisoner. ECF No. 6.
2006, Noguera was convicted in the state district court for
Clark County, Nevada, of two counts of nonforcible sexual
assault upon a minor under 14 years of age. He was sentenced
to concurrent terms of life with the possibility of parole
after 20 years.
state court record on file herein establishes the following
facts. In 2004, Noguera began dating S.G.'s mother and
soon thereafter moved in with S.G.'s family. Noguera
provided financial support for the family and was permitted
to stay in the home after his dating relationship with
S.G.'s mother ended. On at least two occasions, Noguera,
who was 22 years old at the time, had sexual intercourse with
S.G., who was 11 years old. S.G. became pregnant and gave
birth in August 2005. DNA testing confirmed that Noguera was
the biological father of the child.
testified at trial that she loved Noguera and considered him
her boyfriend and that he did not pressure her or trick her
into having sex. She also testified that she understood that
she could have told him no, but that she did not, at any
time, do so.
timely appealed his judgment of conviction. The Nevada
Supreme Court entered an order of affirmance in July 2009 and
subsequently denied Noguera's petition for rehearing in
September 2009. In April 2010, Noguera filed a petition for
post-conviction relief in the state district court. The state
district court entered an order denying relief in September
2010. Noguera appealed. The Nevada Supreme Court affirmed the
lower court's decision in an order entered in May 2011.
mailed his pro se federal petition for writ of
habeas corpus to this court in June 2011. In December 2011,
this court granted respondents' unopposed motion to
dismiss. In February 2014, the United States Court of Appeals
for the Ninth Circuit reversed that decision and remanded the
case for further proceedings. In August 2014, respondents
filed their answer, addressing the merits of each of
Noguera's fifteen habeas claims. Noguera filed his reply
in November 2014.
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 (2010).
ANALYSIS OF CLAIMS
Ground One, Noguera claims that his constitutional rights
were violated because the jury instructions in his case did
not comport with Nevada law and minimized the State's
burden of proof. He contends that two instructions
(Instruction 14 and Instruction 11) improperly directed
guilty verdicts, while three others (Instructions 5, 8, and
9) minimized the State's burden of proof by presupposing
the existence of a “victim” in the
faulty or deficient jury instruction in a state trial will
rise to the level of a constitutional violation only when the
instruction “so infected the entire trial that the
resulting conviction violates due process.”
Middleton v. McNeil, 541 U.S. 433, 437 (2004)
(quoting Estelle v. McGuire, 502 U.S. 62, 71-72
(1991). The instruction must be more than merely erroneous;
petitioner must show there was a “‘reasonable
likelihood that the jury has applied the challenged
instruction in a way that violates the
Constitution.'” Middleton, 541 U.S. at 437
(citations omitted); see also Boyde v. California,
494 U.S. 370, 380 (1990); Cupp v. Naughten, 414 U.S.
141, 146 (1973) (“Before a federal court may overturn a
conviction resulting from a state trial in which [an
allegedly faulty] instruction was used, it must be
established not merely that the instruction is undesirable,
erroneous or even ‘universally condemned, ' but
that it violated some right which was guaranteed to the
defendant by the Fourteenth Amendment.”). Further,
“[i]t is well established that the instruction
‘may not be judged in artificial isolation, ' but
must be considered in the context of the instructions as a
whole and the trial record.” McGuire, 502 U.S.
at 72 (citation omitted); Cupp, 414 U.S. at 147.
Finally, habeas relief is not available unless the alleged
instructional error had a substantial and injurious effect or
influence in determining the jury's verdict. Calderon
v. Coleman, 525 U.S. 141, 147 (1998) (applying
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
14 read, in part, as follows:
On the other hand, consent is never a defense to a charge of
lewdness with a minor under fourteen (14) years of age.
Therefore, if the jury finds beyond a reasonable doubt that
the defendant had sexual intercourse with the alleged victim
while she was less than fourteen (14) years of age with the
intent of arousing, appealing to, or gratifying the lust,
passions or sexual desires of himself or the alleged victim,
but finds such did not amount to sexual assault under the law
for any reason, then the offense of lewdness with a minor
under fourteen (14) years of age has been committed and the
jury should so find (whether or not the defendant was found
guilty of statutory sexual seduction or not guilty as to each
allegation of sexual assault).
counsel objected to the instruction on several grounds,
including on the ground that it directed the jury to find
Noguera guilty of lewdness regardless of its findings on
statutory sexual seduction. ECF No. 29-13, p.
39-46. The trial judge responded by stating,
“[I]f there is consent, he's guilty of lewdness. If
there's not consent, he's guilty of sexual assault.
He can never be not guilty of both.” Id. at
45. The judge further stated that he agreed with defense
counsel's argument that the instruction rendered
“meaningless” the inclusion of the statutory
sexual seduction charges and that, if the jury returned
guilty verdicts on both the lewdness counts and the statutory
sexual seduction counts, he would dismiss the latter.
Id. at 46, 52.
On direct appeal, Noguera challenged the trial court's
issuance of Instruction 14. The Nevada Supreme Court rejected
his arguments as follows:
Noguera challenges jury instruction 14, which he contends
improperly directed a verdict for either sexual assault or
lewdness, and thereby diverted the jury from possibly
rendering a verdict for statutory sexual seduction. As
discussed below, we disagree with Noguera's
characterization of this instruction.
. . .
[W]hile [Instruction 14] assumes that only verdicts for
sexual assault or lewdness were possible and, indeed, the
district court privately informed counsel that it would
dismiss a verdict for statutory sexual seduction, the jury
was separately instructed on the elements of statutory sexual
seduction, was advised that it could consider a verdict for
this lesser offense in case it acquitted Noguera of sexual
assault, and was given the option to convict Noguera of
statutory sexual seduction on the verdict form. Thus,
contrary to Noguera's characterization of instruction 14,
and despite the district court's unrealized threat to
dismiss a verdict for statutory sexual seduction, we conclude
that the jury was able to meaningfully consider Noguera's
possible guilt of this offense.
ECF No. 11-5, p. 5-6 (footnote omitted).
question before this court is whether the foregoing decision
was contrary to, or involved an unreasonable application, of
U.S. Supreme Court precedent. Noguera argues that the
instruction, as confirmed by the trial court's comments,
effectively advised the jury that it must find Noguera guilty
of either sexual assault (if there was not consent) or
lewdness (if there was consent). According to Noguera, the
instruction relieved the State of proving the intent element
that distinguishes lewdness from statutory sexual seduction
and had the effect of preempting the jury's consideration
of statutory sexual seduction as a lesser included offense.
court agrees that the trial judge appeared to ignore the
distinction between lewdness and statutory sexual seduction
and to disregard the latter as a viable alternative verdict.
In addition, the above-quoted portion of Instruction 14 is
misleading with respect to the availability of statutory
sexual seduction as a lesser included offense. Even so, the
judge's comments on the issue were made outside the
presence of the jury and, notwithstanding those comments, the
instruction does require the jury to find that the defendant
possessed the requisite intent in order to return a guilty
verdict on a count of lewdness. In addition, the Nevada
Supreme Court's findings of fact - i.e., that the jury
was separately instructed on the elements of statutory sexual
seduction, was advised that it could consider a verdict for
that lesser offense if it acquitted Noguera of sexual
assault, and was given a statutory sexual seduction option on
the verdict form - are all supported by the record. ECF No.
29-13, p. 76-80; ECF No. 29-14, p. 12-14; ECF 29-16.
summary, reasonable jurists could at least disagree about
whether the use of Instruction 14, viewed within the context
of the state court record as a whole, deprived Noguera of a
trial that met constitutional due process standards. Thus,
the Nevada Supreme Court decision is not “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. at
101. Accordingly, petitioner is not entitled to federal
habeas relief based on this claim.
11, the other instruction Noguera claims to have directed
guilty verdicts, read as follows:
“Statutory sexual seduction” includes sexual
intercourse committed by a person eighteen (18) years of age
or older with a consenting person under the age of sixteen
As a matter of law a person under the age of sixteen (16) is
incapable of consenting to the above acts. Therefore, in a
prosecution for statutory sexual seduction, it is no defense
that the person may have consented to one or more of the
above described acts. Mistake of fact, as to the person's
age, is no defense to the crime.
to Noguera, the first sentence of the second paragraph
removed lack of consent as an element of sexual assault
because there was no language limiting the provision to
statutory sexual seduction. As a result, Noguera argues, the
instruction directed jurors to guilty verdicts on both counts
of sexual assault.
again this court is not convinced that there is a reasonable
likelihood that the jury applied the instruction in a way
that violates the Constitution. While not a model of clarity,
the instruction as whole is reasonably interpreted as
addressing only statutory sexual seduction, not the other
charges Noguera was facing. In addition, the jury was
specifically instructed that the crime of sexual assault
required proof of sexual penetration "under conditions
in which the defendant knew or should have known that the
alleged victim was either mentally or physically incapable of
resisting or understanding the nature of his conduct, or of
knowingly and intelligently consenting or understanding the
nature of the act." ECF No. 29-14, p. 6. Thus,
Instruction 11 does not provide grounds for habeas relief.
regard to Instructions 5, 8, and 9, Noguera argues that
repeated reference to S.G. as a “victim”
unconstitutionally minimized the prosecution's burden of
actually proving that there was a victim in the case. The
Nevada Supreme Court rejected, without discussing, this
argument in deciding Noguera's direct appeal. ECF No.
11-5, p. 6.
courts have generally held that “the use of the word
‘victim' in the jury instructions is not
prejudicial to a defendant's rights when the instructions
taken as a whole clarify the government's burden of
proving all elements of the crime.” United States
v. Washburn, 444 F.3d 1007, 1013 (8thCir.
2006). Perhaps, the phrase “alleged victim” would
have been preferable, but, in each of the instructions
Noguera challenges, the word “victim” was a clear
and concise way to refer to the person who was object of the
defendant's alleged acts. Moreover, defense counsel
conceded at trial that Noguera's conduct in relation to
S.G. made him guilty of a crime. ECF No. 29-12, p. 16-17.
question before the jury was not whether there was a victim
in the case, but instead, which crimes Noguera had
committed. The instructions in question did not, by their use
of the word “victim, ” impermissibly steer the
jury toward finding Noguera guilty of a particular crime.
Thus, the use of the word “victim” did not
“so infect the entire trial that the resulting
conviction violates due process.” McGuire, 502
U.S. at 72.
One is denied.
Ground Two, Noguera claims that his constitutional rights
were violated because the trial court refused to adequately
instruct the jury on the defense theory of the case - that
being that Noguera held a reasonable and good faith belief
that S.G. voluntarily consented to sexual intercourse. At
trial, defense counsel proposed the following instruction:
In the crime of sexual assault, criminal intent must exist at
the time of the commission of the crime charged.
There is no criminal intent if the defendant had a reasonable
and good faith belief that the other person voluntarily
consented to engage in sexual intercourse. Therefore, a
reasonable and good faith belief that there was voluntary
consent is a defense to such a charge, unless the defendant
thereafter became aware or reasonably should have been aware
that the other person no longer consented to the sexual
However, a belief that is based upon ambiguous conduct by an
alleged victim that is the product of conduct by the
defendant that amounts to force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the person of
the alleged victim or another is not a reasonable good faith
If after consideration of all of the evidence you have a
reasonable doubt that the defendant had criminal intent at
the time of the accused sexual activity, you must find him
not guilty of the crime.
ECF No. 29-15.
refusing to include the instruction, the trial judge stated
that the instruction was designed for cases in which there is
uncertainty as to whether the alleged victim willingly
engaged in the alleged conduct. ECF No. 29-13, p. 48-50.
According to the trial judge, the instruction was
inappropriate in Noguera's case because the dispute
centered on whether S.G. had the capacity to consent
to sexual intercourse with the defendant, not over whether
she voluntarily participated in the conduct. Id.
direct appeal, Noguera challenged the trial court's
refusal to issue the proposed instruction. The Nevada Supreme
Court rejected his arguments as follows:
Noguera contends that the district court abused its
discretion in denying his proposed jury instruction on the
defense of reasonable mistaken belief in consent. See
Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585
(2005) (district courts have broad discretion to settle jury
instructions). We disagree for two reasons.
First, Noguera sought his instruction under Honeycutt v.
State, 118 Nev. 660, 56 P.3d 362 (2002), overruled
on other grounds by Carter v. State, 121 Nev. 759, 765,
121 P.3d 592, 596 (2005), a forcible rape case, and proffered
a replica of the reasonable-mistaken-belief-in-consent
instruction given there - instruction 10.65 of the California
Jury Instructions for Criminal Cases (CALJIC). However, as
the district court correctly recognized, and as the comment
to CALJIC 10.65 confirms, Noguera's instruction, as
proposed, was designed for use against a charge of forcible
rape, and only in the limited circumstance when there is
substantial conflicting evidence respecting actual consent,
i.e., equivocal conduct suggesting consent was manifested .
See 1 California Jury Instructions,
Criminal 10.65, at 693-94 (7th ed. 2003); see also
Honeycutt, 118 Nev. at 671, 56 P.3d at 369 (citing the
comment to CALJIC 10.65 and recognizing this
instruction's limits). Here, everyone agreed the alleged
victim ostensibly consented; indeed, she testified she was in
love with Noguera. The issue was whether this eleven year old
girl had the capacity to consent, a different ...