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Silva v. LeGrand

United States District Court, D. Nevada

July 27, 2017

FRANCISCO SILVA, Petitioner,
v.
ROBERT LeGRAND, et al, Respondents.

          ORDER

         Introduction

         This 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.

         Substitution of Respondent

         Silva 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 this action.

         Background

         Silva 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.

         Silva 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).

         Silva's second trial began on January 5, 2009. See Trial Transcript, January 5, 2009, Exhibit 20 (ECF No. 23).

         AS 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?
A. Yes.
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?
A. Yes.
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 breasts?
A. Yes.
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?
A. Yes.

Id. at 53-55 (ECF No. 23, pp. 15-16); see also Id. at 68, 90-92 (ECF No. 23, pp. 19, 25).

         AS' 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.

         Jorge 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).

         Toni 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.

         Dr. 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).

         Las 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 ...


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