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Banuelos v. Smith

United States District Court, D. Nevada

July 13, 2017

GREG SMITH, et al., Respondents.



         This habeas matter comes before the Court for a final decision. The issues remaining for decision include those concerning respondents' procedural default defense, which the Court deferred for consideration in the context of the presentations on the merits.

         I. BACKGROUND

         A. Procedural Background and Claims

         Petitioner Enrique Banuelos was convicted in Nevada, pursuant to a guilty plea, of the first degree murder of Miguel Diaz Salazar. (Exh. 10.)[1] He was sentenced to life with the possibility of parole after 20 years. (Exhs. 12, 13.)

         The judgment of conviction was entered on March 7, 2008. (Exh. 13.) Petitioner did not file a direct appeal, and the time for doing so expired on Monday, April 7, 2008.

         Petitioner filed a state post-conviction petition on September 4, 2009. (Exh. 19.) The state district court dismissed the petition as untimely (Exh. 27), and the state supreme court affirmed on that basis (Exh. 32).

         Petitioner constructively filed the federal petition on or about December 12, 2011. (ECF No. 1.) On respondents' motion to dismiss, the Court held that the petition was timely because petitioner was entitled to equitable tolling from the March 7, 2008, date of petitioner's conviction through the filing of the counseled second amended petition on October 3, 2013. (ECF No. 49 at 2-7.) As noted, the Court deferred consideration of respondents' procedural default defense for consideration in the context of the presentations on the merits. (Id. at 8-9.)

         In Ground 1(A), petitioner alleges that he was denied effective assistance of counsel at sentencing when counsel allegedly: (i) failed to present mitigating evidence; (ii) allowed the court to operate under the view that the plea negotiations included a recommendation only of a sentence of life with parole eligibility after 20 years; and (iii) improperly advised the court that there was no difference between 50 years and life at the top end of the sentence. (ECF No. 29 at 7-8.)

         In Ground 1(B), petitioner alleges that he was denied effective assistance of counsel when counsel failed to advise him of his right to appeal. (Id. at 8.) He maintains that if he had been so advised, he would have directed counsel to appeal the judgment and sentence. (Id.) He alleges in the second amended petition, to indicate what his argument on direct appeal would have been, that defense counsel failed to ensure that petitioner understood the consequences of pleading guilty to the charge. (Id.) He alleges without elaboration that he would not have pled guilty “[b]ut for the errors, omissions and representations of trial counsel.” (Id.)

         Consideration of whether petitioner can demonstrate the prejudice necessary to overcome the procedural default of his claims and/or the prejudice required to establish ineffective assistance of counsel on the merits requires that the Court review the facts that the State likely would have sought to establish at trial.[2]

         B. Factual Background

         Armando Baltazar (“Armando”) testified as follows at the preliminary hearing. At the relevant time, Armando had known Enrique Banuelos (“Banuelos”) for several months to a year. He had worked with him in construction. Armando also bought $20.00 to $40.00 worth of methamphetamine from Banuelos every week. (ECF No. 30-4 at 22-25.)[3]

         Armando also knew Miguel Diaz Salazar, who he referred to as Diaz, as an occasional acquaintance. At some point, Diaz asked Armando where he could purchase some drugs. Armando introduced Diaz to Banuelos, and they ultimately conducted the transaction at Banuelos' residence with Armando present. Banuelos agreed to sell Diaz an ounce of methamphetamine at a cost of $1000.00. Diaz left with the drugs saying that he would return shortly with the money. He never returned. (Id. at 20-22 & 24-27.)

         Armando accepted responsibility for Banuelos' loss because he had made the introduction. Banuelos also told him that he would be responsible for the debt until Diaz came back. Armando stayed for three days at Banuelos' house and worked with Banuelos on a construction job site without personally receiving any of the pay. This was not sufficient to cancel the debt, however. (Id. at 27-29.)

         Thereafter, Banuelos came and picked up Armando a number of times to go looking for Diaz to collect on the drug debt. Armando later told detectives that Banuelos said that if the debt was not paid he was going to kill Armando and Diaz. However, Armando denied that Banuelos made such a specific statement in his preliminary hearing testimony. (Id. at 29-38.)

         According to the testimony of Jeffrey Baltazar (“Baltazar”), Armando's brother, he took responsibility for the debt at some point because his brother would not be able to repay it. Baltazar testified that Banuelos threatened him and that he and/or his brother would be harmed if he did not repay the debt. (ECF No. 30-3 at 78-80, 90-91 & 97-98.)

         According to the testimony of Alejandra Garcia, Baltazar's then girlfriend, Banuelos appeared a number of times at her trailer attempting to collect on the drug debt owed to him now by Baltazar and Armando. Banuelos said that if Baltazar did not pay, he was going “to do something” to him. Another two times two men, at least one of whom was armed, appeared at the trailer to collect the debt owed to Banuelos. (Id. at 6-8, 17, 51-56 & 66-73.)

         According to the testimony of Ruben Zambrano Lopez, he was holding his brother Oscar's handgun because Oscar had children at home. Oscar's handgun was a chrome .38 caliber semiautomatic pistol (rather than a revolver) with brown grips. On January 29, 2007, Banuelos called and asked to borrow the gun from Ruben. When Banuelos stopped by to pick up the gun during the early afternoon, Ruben invited him to go out for a beer. Banuelos declined, telling Ruben that he did not have the time because “he was going to go and collect some money.” (ECF No. 30-4 at 86-94.)

         Jeffrey Baltazar and Alejandra Garcia testified collectively that Banuelos, accompanied by an acquaintance named Chaparro, came to Garcia's trailer the afternoon of January 29, 2007, once again seeking to collect the debt owed to him. Baltazar went with Banuelos and Chapparo first to a tax preparation business to see if Baltazar's tax refund had come in yet, but it had not. They then were going to take Garcia to her bank to see if she could withdraw the money from her account. Garcia told Banuelos that the account had been blocked, but he wanted to see that for himself. (ECF No. 30-3 at 9-20, 56 & 64-65 (Garcia); id. at 77-80 & 92-95 (Baltazar.)[4]

         At some point, they learned that Diaz was at the nearby Kmart waiting to do a drug deal with a young female who was unable to follow through on the deal. They substituted Garcia for the other female and had her call Diaz ostensibly to follow through with the deal. She told him that she would be driving a black Durango so that he would be able to recognize her. (Id. at 20-26, 39-40 & 56 (Garcia); id. at 80-82, 91-92 & 95 (Baltazar).)

         With Garcia driving Banuelos' black Durango SUV, and with Banuelos directing her moves, they dropped Baltazar and Chapparo off at the exterior garden center for the Kmart. Banuelos remained in the backseat or behind the backseat, substantially obscured from view from outside the vehicle. After Garcia and Banuelos saw Diaz standing near the Kmart entrance, Garcia pulled into a parking space close to the entrance. Diaz had seen her and was walking toward the SUV, and she told him to get into the vehicle. (Id. at 23-34 & 57-58 (Garcia); id. at 82-83 & 88-89 (Baltazar).)

         As Diaz was getting in through the front passenger door, Banuelos was turned facing away from Diaz in the back. Seeing someone in the back but apparently not yet recognizing Banuelos, Diaz said to Garcia something along the lines of “is he your friend now?” or “who is he?” She responded that the person in the back was a friend and the owner of the truck. Diaz further said that they needed to go to a nearby Sak'N Save grocery store, apparently to meet his connection to get the drugs for the deal. (Id. at 34-37, 38-39, 56-60 & 65 (Garcia).)

         Diaz then turned to look directly in the backseat. Banuelos pointed a handgun at Diaz and said “Do you remember me?” Diaz turned away and started to open the door to try to get out of the vehicle, but Banuelos shot him in the back of the head before he could escape. Diaz then apparently fell from the vehicle onto the parking lot pavement. (Id. at 37-38, 40-43 & 60.)[5]

         Banuelos told Garcia to drive away, but she panicked immediately after the shooting and tried to get out of the vehicle. Banuelos tried to grab her; but she was able to break free, get out of the SUV, and run. She initially ran by where Baltazar was standing and told him that Banuelos had shot Diaz. She and Baltazar then saw Banuelos drive the Durango away from the scene at high speed. (Id. at 37-38, 43-46 & 60-63 (Garcia); id. at 83-88 (Baltazar).)

         Garcia, still very scared, ran on toward her trailer. While she ran, she shed a tank top that she had been wearing as an outer layer, in an effort to avoid being picked up by the police. However, she was picked up by the police before she made it home. She told the police that Banuelos had shot Diaz. (Id. at 46-51 & 65-67 (Garcia).)

         Meanwhile, multiple witnesses had seen the black Durango leaving the scene at high speed. A young girl made a point to remember the license plate number, which apparently matched Banuelos' vehicle. (ECF No. 30-4 at 6-19 (Kevin Scott);[6] id. at 53-64 (Pamela Brondel);[7] id. at 78 (picture of the license plates taken off the Durango).)

         According to the testimony of Miguel Banuelos (“Miguel”), Enrique Banuelos' brother, Banuelos arrived in his Durango late on the afternoon of January 29, 2007. Banuelos appeared to Miguel to be scared, and he told Miguel that “he had f-ked somebody up with a gun.” He said that he no longer had the gun after Miguel expressed concern about having the gun in the house with his children. Banuelos asked Miguel to pull his truck out of the driveway so that Banuelos could park the Durango on the inside away from view. The brothers then removed and hid the license plates for the Durango, and they tried to clean the blood off the inside of the front passenger door. They also switched jackets with one another. (ECF No. 30-4 at 65-72 & 75-85;[8] id. at 97-104 (Claudia Puga).) At some point, Ruben Zambrano Lopez, who had loaned Banuelos the handgun, spoke with Banuelos by phone. Banuelos told him that he had killed someone and that he would not be returning the gun. (Id. at 92-94.)

         Miguel Banuelos and his wife took Enrique Banuelos to a woman's house near the trailers where he usually lived. He got some beer on the way. The woman with the house, Ana Salgado, testified that she initially made Banuelos leave because he had a gun. He later returned without it; and she let him sleep on the sofa, because the nearby trailers did not have water. She testified that the gun was silver in color. The police later apprehended Banuelos at that location. (ECF No. 30-4 at 70-75 (Miguel Banuelos); id. at 103-08 (Claudia Puga); id. at 38-53 (Ana Salgado).

         When the police examined the Durango, they found a .38 Super Plus P caliber spent casing on the right rear floorboard under the back seat and a deformed jacketed bullet in or on the right front floorboard. The police retrieved from the home of Oscar Lopez - who had testified that he loaned to Banuelos - an empty gun box for a Colt .38 Super handgun. The caliber listed on the box corresponded with the caliber of the spent casing recovered from the Durango. (Id. at 117-22 (Detective Richard Laffins).)[9]

         Miguel Diaz Salazar was pronounced dead at the scene. The bullet had entered the back of the right side of his head and exited above the left eyebrow, consistent with Diaz having turned away from the shooter trying to get out of the vehicle. (Id. at 110-13 (Sparks Police Department Lieutenant Chad Hawkins); ECF No. 32 at 7 (description of fatal injury in presentence investigation report; filed under seal).)

         The State initially charged Banuelos with murder with the use of a deadly weapon. At the time of the offense, the potential penalties on a first degree murder charge ranged from a minimum determinate 50-year sentence with eligibility for parole consideration after 20 years, to a life sentence with the eligibility for parole consideration after 20 years, to a life sentence without the possibility of parole.[10] (See, e.g., ECF No. 30-9 at 4 (guilty plea agreement).) At the time of the offense, conviction also on the weapon enhancement required imposition of an equal sentence consecutive to the sentence on the murder charge. See, e.g., State v. District Court (Pullin), 188 P.3d 1079 (Nev. 2008) (statutory amendment changing sentencing on a weapon enhancement to a discretionary range did not apply retroactively to offenses occurring prior to July 1, 2007). Accordingly, if tried and convicted of both first degree murder and the weapon enhancement, petitioner faced a minimum of a determinate 100-year aggregate sentence with no possibility of parole for 40 years to a maximum of two consecutive life sentences without the possibility of parole.

         Banuelos was 31 years old on the date of the offense. If he went to trial and was convicted of both first degree murder and the weapon enhancement, he thus faced at a minimum, incarceration until his early seventies before any possibility of parole.

         In the plea agreement, Banuelos pled guilty to first degree murder with no weapon enhancement. The parties agreed to the following with respect to sentencing:

. . . . The State will recommend a sentence of not more than 20 years to life. The defense is free to argue as to the appropriate sentence. The State will not file additional criminal charges resulting from the arrest in this case. The parties hereby stipulate and agree that if the Court sentences Defendant to a term greater than 20 years to life with the possibility of parole that he may withdraw his plea.

(ECF No. 30-9 at 4 (last sentence handwritten and initialed).)

         Petitioner thereby avoided the possibility of life sentencing without the possibility of parole, and he would be eligible for parole consideration in his early fifties rather than his seventies on the first degree murder conviction with no weapon enhancement.

         The Court will discuss the particulars of the plea and sentencing further, infra, in the discussion of the particular claims and issues.


         A. Governing Law

         Under the procedural default doctrine, federal review of a habeas claim may be barred if the state courts rejected the claim on an independent and adequate state law procedural ground. Review of a defaulted claim will be barred even if the state court also rejected the claim on the merits in the same decision. Federal habeas review will be barred on claims rejected on an independent and adequate state law ground unless the petitioner can demonstrate either: (a) cause for the procedural default and actual prejudice from the alleged violation of federal law; or (b) that a fundamental miscarriage of justice will result in the absence of review. See, e.g., Bennet v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003).

         To demonstrate cause, the petitioner must establish that some external and objective factor impeded his efforts to comply with the state's procedural rule. E.g., Murray v. Carrier, 477 U.S. 478, 488 (1986); Hivala v. Wood, 195 F.3d 1098, 1105 (9th Cir. 1999). To demonstrate prejudice, he must show that the alleged error resulted in actual harm. E.g., Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). Both cause and prejudice must be established. Murray, 477 U.S. at 494.

         B. Independent State Law Ground

         Petitioner contends that the state time bar rule in NRS § 34.726(1) did not constitute an independent state law procedural ground with respect to federal Ground 1(B).

         A state procedural rule constitutes an “independent” bar if it is not interwoven with federal law or dependent upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75 (1985); La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001). “A state law ground is so interwoven if ‘the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.'” Park v. California, 202 F.3d 1146, 1152 (9th Cir.2000) (quoting Ake, 470 U.S. at 75). Under established Ninth Circuit law, a state court's application of a state procedural bar does not become interwoven with and dependent upon an antecedent federal constitutional ruling where the state court discusses the merits solely to determine whether the petitioner can establish cause and prejudice to overcome the procedural default. Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996). The determination of whether the petitioner can demonstrate cause and prejudice excusing a procedural default presents a purely state law question. See Bargas v. Burns, 179 F.3d 1207, 1214 (9th Cir. 1999).

         In Ground 1(B), petitioner alleges that he was denied effective assistance of counsel when counsel failed to advise him of his right to appeal. Petitioner urges that the state supreme court made an antecedent federal ...

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