United States District Court, D. Nevada
action is a petition for writ of habeas corpus by Francisco
Silva, a Nevada prisoner. The action is before the Court with
respect to the merits of Silva's amended habeas petition.
The Court will deny Silva's petition.
is incarcerated at Nevada's Lovelock Correctional Center
(LCC). Renee Baker is the warden of LCC. Therefore, pursuant
to Federal Rule of Civil Procedure 25(d), Renee Baker will be
substituted for Robert LeGrand, as the respondent warden in
was convicted on March 23, 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 sexual assault with a minor under
fourteen years of age. See Judgment of Conviction,
Exhibit 26. (The exhibits referred to in this order were
filed by Silva, and are located in the record at ECF Nos.
20-27.) Silva was sentenced on the lewdness convictions to
eight concurrent sentences often years to life in prison, and
on the sexual assault conviction to a concurrent sentence of
twenty years to life in prison. See Id. Silva's
convictions result from his sexual abuse of his common-law
wife's sister, AS, who was between ten and twelve years
old when Silva sexually abused her.
was first tried between July 9 and 13, 2007. See
Trial Transcripts, Exhibits 10, 11, 13 and 14 (ECF Nos.
20-10, 21, 21-1, 21-2, 22-1, 22-2 and 22-4). At the
conclusion of that trial, the jury found Silva guilty of all
counts: eight counts of lewdness with a child under the age
of fourteen, and one count of sexual assault with a minor
under fourteen years of age. See Verdict, Exhibit 16
(ECF No. 22-5). Silva moved for a new trial, on the ground
that the prosecution had made an improper propensity argument
in its final argument to the jury. See Motion for
New Trial, Exhibit 18 (ECF No. 22-7). The trial court granted
that motion, and set a date for a new trial. See
Order Granting New Trial, Exhibit 19 (ECF No. 22-8).
second trial began on January 5, 2009. See Trial
Transcript, January 5, 2009, Exhibit 20 (ECF No. 23).
testified first. She testified that she was born in February
1992; she was twelve years old in November 2004, when the
event that led to Silva's arrest occurred. See
Testimony of AS, Trial Transcript, January 5, 2009, Exhibit
20, p. 40 (ECF No. 23, p. 12). AS testified that on an early
morning in November 2004, she woke up in her bed to find
Silva fondling her breasts. See Id. at 43-44 (ECF
No. 23, p. 13). She testified that when this happened, Silva
was sitting on her bed, and then he got under the covers with
her. See Id. at 44. At the time, AS' older
brother, Jorge, was sleeping on a mattress on the floor in
the same room; he did not usually sleep there, but slept
there instead of in the living room on that occasion, because
he was ill. See Id. at 42-43. AS testified that when
Silva was in her bed, Jorge woke up and raised and then
lowered his head, and then Silva got up and left the room.
See Id. at 45-46 (ECF No. 23, pp. 13-14). AS
testified that Jorge asked her who was there, but she did not
tell him at that time. See Id. at 46-47 (ECF No. 23,
p. 14). AS testified that she did not tell her brother who it
was because she was afraid Jorge would tell their father.
See Id. at 47. AS testified that in the morning,
Jorge and her mother spoke with her about what happened and
she told them that it was Silva who had been in her bed.
See Id. at 47-49. AS testified that her mother then
called the police, the police came to the house, and she
spoke to them about what had happened. See Id. at
48-49. AS testified that a few days later her mother took her
to a hospital. See id. at 51-52 (ECF No.
23, p. 15). AS testified that she had not taken Silva's
cell phone on the night of the November 2004 incident, and
that, when Silva was in her room, he did not say anything
about his cell phone, and, to her knowledge, he did not find
his cell phone in her room. See Id. at 59-60 (ECF
No. 23, p. 17); see also Id. at 65-66 (ECF No. 23,
pp. 18-19) (testifying on cross-examination that Silva was
lying when he claimed that he woke her up asking about his
cell phone). AS testified that Silva had touched her
inappropriately on other occasions as well. See Id.
at 53 (ECF No. 23, p. 15). AS testified about those other
occasions as follows:
Q. What was the first - or what was the first thing you ever
remember happening? What kind of touching?
A. In the other occasions he touched my breasts. He touched
my vagina, and he put his penis in my vagina.
Q. Do you remember when he put his penis in your vagina - how
did that feel?
A. It hurt.
* * *
Q. Was that the first time you remember anything happening to
you related to the defendant?
Q. So if that was die first time ~ you said that there were
other times that something happened where he touched you one
way or the other; is that correct?
Q. Do you know about how many times he touched you between
that first time and the time that you talked to the police?
A. Five times in the past he touched my vagina with his
penis, and the other times he just touched my breasts.
Q. How many times were those?
A. Nine times.
Q. When he touched your breasts, did he touch just your
Q. What did he touch your breasts with?
A. With his hands.
Q. So he touched your breasts nine times with his hands, and
he's touched your vagina five times with his penis?
Id. at 53-55 (ECF No. 23, pp. 15-16); see also
Id. at 68, 90-92 (ECF No. 23, pp. 19, 25).
brother, Jorge Soza, also testified. Jorge testified that
early that November, 2004, morning, he was sleeping in the
same room as AS, and he woke up and saw Silva in AS's
bed, under the covers. See Testimony of Jorge Soza,
Trial Transcript, January 6, 2009, Exhibit 21, p. 24 (ECF No.
23-1, p. 8). Jorge saw movement in the bed. See Id.
Jorge testified that Silva then got out of the bed and left
the room. See Id. at 25. Jorge testified that he did
not hear Silva ask AS about his cell phone, and he did not
see Silva look under the bed or anyplace else in the room.
See Id. at 26-27 (ECF No. 23-1, p. 9). Jorge
testified that the next morning he told his mother what he
saw, and he and his mother spoke with AS about what had
happened. See Id. at 28-29. AS became upset, and
began crying, and told them what Silva had done. See
Id. at 29. Jorge testified that AS said that Silva had
touched her breasts. See id.
testified that some six months later Silva approached him and
spoke to him about this matter. See Id. at 33-34
(ECF No. 23-1, pp. 10-11). Jorge testified that Silva told
him "[n]ot to come to court and not to tell what
happened, " and "[t]o say that [he] made it
up." See Id. at 34 (ECF No. 23-1, p. 11). Jorge
testified that Silva told him "[t]o help him, and if
[he] ever had a problem, [Silva] would help him."
See Id. Jorge also testified that he received a
letter from Silva, in which Silva asked "for us not to
come back to court and to say that we had made it up."
See Id. at 34-38 (ECF No. 23-1, pp. 11-12).
Drew, a nurse, testified that she took part in interviewing
AS when AS was brought into a hospital on November 29, 2004.
See Testimony of Toni Drew, Trial Transcript,
January 6, 2009, Exhibit 21, pp. 62-67 (ECF No. 23-1, pp.
18-19). Drew testified that AS told them that she had been
touched on about ten occasions in a manner that was possibly
sexual assault. See Id. at 70-71, 74 (ECF No. 23-1,
pp. 20-21). Drew testified that AS described being touched,
on numerous occasions, in her vaginal area, by a man's
penis, and AS said it hurt. See Id. at 71-73. AS
also said she had been touched on her breasts by a
person's hands. See Id. at 73.
Neha Mehta, a pediatrician, also testified about the
interview of AS, and her examination of her, at the hospital
on November 29, 2004. AS told Dr. Mehta that a man had put
his mouth and his hands on her breasts, and had placed his
penis in the area of her vagina, and that had been painful.
See Testimony of Neha Mehta, Trial Transcript,
January 6, 2009, Exhibit 21, p. 92 (ECF No. 23-1, p. 25). Dr.
Mehta testified that AS said that such incidents had happened
with this person about ten times. See Id. The
results of Dr. Mehta's physical examination of AS were
consistent with a person AS' age who had been subjected
to sexual intercourse. See Id. at 97-98 (ECF No.
23-1, pp. 26-27). However, at the same time, the results of
the physical examination were inconclusive as to whether in
fact that had happened. See Id. at 100, 103-04 (ECF
No. 23-1, pp. 27-28).
Vegas Municipal Police Officer Carlos Luna then testified.
Luna testified that he responded to the residence where AS
lived on the morning of November 11, 2004. He ...