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Noguera v. LeGrand

United States District Court, D. Nevada

May 18, 2017

CARLOS NOGUERA, Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND[1]

         In 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.

         The 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.

         S.G. 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.

         Noguera 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.

         Noguera 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.

         II. STANDARDS OF REVIEW

         This 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; 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 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.

         The 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 omitted).

         "[A] 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).

         III. ANALYSIS OF CLAIMS

         Ground One

         In 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 case.[2]

         A 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)).

         Instruction 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).

         Defense 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.[3] 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).

         The question before this court is whether the foregoing decision was contrary to, or involved an unreasonable application, of U.S. Supreme Court precedent.[4] 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.

         This 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.

         In 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.

         Instruction 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 (16) years.
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.

         According 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.

         Here 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.

         With 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.

         Federal 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.

         The 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.

         Ground One is denied.[5]

         Ground Two

         In 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 activity.
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 belief.
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.

         In 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.

         On 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 ...

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