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Rosas v. McDaniel

United States District Court, D. Nevada

August 22, 2017

Fabian Fuentes Rosas Petitioner
v.
E.K. McDaniel, et al., Respondents

          ORDER OF DISMISSAL [ECF No. 110]

          Robert C. Jones, United States District Judge

         Petitioner Fabian Fuentes Rosas, a prisoner in the custody of the State of Nevada, brings this habeas action under 28 U.S.C. § 2254 to challenge his 2000 Nevada state convictions resulting from a double homicide at a Domino's Pizza store. (ECF No. 68). After evaluating his claims on the merits, I deny Rosas's petition for a writ of habeas corpus, dismiss this action with prejudice, and deny a certificate of appealability.

         Background

         Just past midnight on May 24, 1997, a man walked into a Domino's Pizza store in Elko, Nevada, and shot two employees. Later investigation revealed that roughly $400 was missing from the register, but that some cash was left behind.

         Rosas was indicted on July 13, 1999 for the murders and related conduct. (Exhibit 199).[1] On September 18, 2000, Rosas was found guilty following a jury trial of two counts of murder in the first degree with the use of a deadly weapon, one count of conspiracy to commit murder, one count of robbery with the use of a deadly weapon, and one count of conspiracy to violate the Uniform Controlled Substances Act. (Exhibit 18, at 2-3). He was sentenced to multiple consecutive sentences of life in prison widiout the possibility of parole, in addition to other consecutive sentences. (See Id. at 4).

         Rosas appealed, and the Nevada Supreme Court affirmed on December 17, 2001. (Exhibit 138). Following a petition for rehearing, an amended affirmance was filed on May 10, 2002. (Exhibit 140). On August 7, 2002, Rosas mailed a state petition for a writ of habeas corpus, and it was denied on June 24, 2003. (Exhibit 147; Exhibit 172).

         Rosas then filed a pro se habeas action in federal court under 28 U.S.C. § 2254. (ECF No. 7). Following appointment of counsel, (see ECF No. 22), Rosas filed a First Amended Petition for a Writ of Habeas Corpus on November 20, 2006. (ECF No. 32). On September 16, 2008, in response to challenges raised by the State, this Court granted a stay of to allow Rosas to further pursue and exhaust claims for post-conviction relief in state court. (ECF No. 61).

         Rosas filed a second state petition for habeas relief on November 3, 2008. (Exhibit 203). It was denied on February 1, 2011. (Exhibit 237 (proposed findings); Exhibit 240 (adopting the proposed findings)). Rosas appealed, and the Nevada Supreme Court affirmed. (Exhibit 247). Remittitur issued on March 4, 2013. (Exhibit 255).

         Rosas then returned to this Court and filed a motion to reopen on April 17, 2013 and to file a second amended petition. (ECF No. 63). This Court granted the motion. (ECF No. 67). Rosas filed his Second Amended Petition for a Writ of Habeas Corpus. (ECF No. 68). The Second Amended Petition raised ten grounds for relief:

Ground One: Rosas was denied his rights to due process of law and a fair trial under the Fifth and Fourteenth Amendment[s] when the State prosecuted him for the Domino's murders in breach of the plea agreement precluding such prosecutions. (ECF No. 68, at 14-22).
Ground Two: Rosas was denied his rights to due process of law and a fair trial under the Fifth and Fourteenth Amendments when the district court denied his motion to dismiss the case on the grounds that the State was precluded from prosecuting Rosas due to a prior negotiated plea/polygraph agreement. (ECF No. 68, at 22-31).
Ground Three: Rosas was denied his rights to due process of law and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution when the prosecutor raised and impeached an alibi defense in his case in chief, thereby improperly shifting the burden of proof to the defendant. (ECF No. 68, at 31-34).
Ground Four: Rosas was denied his right to the effective assistance of appellate counsel under the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to [challenge] the prosecution's use of a peremptory challenge to exclude a Hispanic from serving on the jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). (ECF No. 68, at 34-38).
Ground Five: Rosas was denied his right to the effective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to move for a change of venue after a prospective juror informed the court and counsel that Elko, Nevada's white and Mexican communities were racially split as to Rosas' guilt of the crimes charged, the former favoring convictions and the latter acquittals. (ECF No. 68, at 38-0).
Ground Six: Rosas was denied his right to the effective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to investigate (1) a leading suspect in the killings and (2) a witness who could have impeached Liana Marie Barraza, and therefore, failed to prepare a meaningful defense. (ECF No. 68, at 40-43).
Ground Seven: The State's failure to disclose (1) the prosecution of J.J. Arnold Homer as an ex-felon in possession of a 9mm pistol during the summer of 1997, and its consequent seizure of such 9mm pistol and destruction thereof at closure of the case and (2) the investigation of Homer for stealing dynamite and threatening various persons and institutions with it denied Rosas his rights to due process of law and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution. (ECF No. 68, at 43-44).
Ground Eight: Admission of prior bad act testimony violated petitioner's constitutional rights to a fair trial and due process of law under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. (ECF No. 68, at 44-47).
Ground Nine: Rosas was denied his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution because there was insufficient evidence presented at trial to support a finding of guilt of the crimes charged beyond a reasonable doubt. (ECF No. 68, at 47-49).
Ground Ten: Rosas was denied his right to the effective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to object to the joinder of the controlled substances conspiracy charge (Count 9) with the previous eight counts concerning the Domino's Pizza killings. (ECF No. 68, at 49-50).

         The State moved to dismiss the Second Amended Petition. (ECF No. 78). The State argued that a number of claims had not been exhausted in state court, were untimely because they did not relate back, or were procedurally barred because they were procedurally defaulted in state court.

         This Court rejected the first two of these arguments, holding that Ground Eight had been exhausted in state court and that Grounds Five, Seven, Eight, and Ten were not untimely. (ECF No. 86, at 8). Addressing the State's final argument, this Court held:

Because Grounds One, Two, Five, Six, Seven, and Ten of the second amended federal habeas petition assert the same claims made in the procedurally defaulted state court habeas petition, these claims are procedurally barred from federal review and will be dismissed with prejudice unless petitioner can show cause and prejudice to excuse the procedural bar, or that this Court's failure to consider the defaulted claims will result in a fundamental miscarriage of justice.
The Court has determined that die analysis of cause and prejudice arguments in this case are closely related to the analysis on the merits of the case. Therefore, the Court will defer on ruling on [the] cause and prejudice issue until the merits are fully briefed.

(Id. at 10-11).

         The State filed its Second Amended Answer. (ECF No. 94). Rosas filed his Second Amended Reply. (ECF No. 103).

         Standard of review

         When a state court has adjudicated a claim on the merits, the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating the state court ruling that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. Id. at 202. Instead, under 28 U.S.C. § 2254(d), die court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court or (2) was based on an unreasonable determination of the facts in light of the evidence presented at die state court proceeding. Id. at 181-88. The petitioner bears the burden of proof, Id. at 181.

         A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. The Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. And "a federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." Id. at 16. A decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.

         A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." See, e.g., Id. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). When a state court's factual findings based on the record before it are challenged, the "unreasonable determination of fact" clause of 28 U.S.C. § 2254(d)(2) controls, which requires federal courts to be "particularly deferential" to state court factual determinations. See, e.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This standard is not satisfied by a mere showing that the state court finding was "clearly erroneous." Id. at 973. Rather, AEDPA requires substantially more deference:

[I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), state court's factual findings are presumed to be correct and the petitioner must rebut that presumption by "clear and convincing evidence." In this inquiry, federal courts may not look to any factual basis not developed before the state court unless the petitioner both shows that the claim relies on either (a) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" or (b) "a factual predicate that could not have been previously discovered through the exercise of due diligence" and shows that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2).

         Discussion

          A. Ground 1

          In Ground 1, Rosas argues that he "was denied his rights to due process of law and a fair trial under the Fifth and Fourteenth Amendment[s] when the State prosecuted him for the Domino's murders in breach of the plea agreement precluding such prosecutions." (ECF No. 68, at 14). Sometime prior to August 21, 1997, Rosas was charged with three drug felonies. After that, Woodbury, the Elko County District Attorney, approached Leeds, Chief Deputy Elko County Public Defender, about whether Rosas would take a polygraph examination concerning Rosas's involvement in or knowledge of the Domino's homicides. Rosas, assisted by Leeds, reached and signed the following "Agreement to Take Polygraph Examination":

I, (Fabian Rosas) after consulting with my attorney, Frederick H. Leeds, have agreed to take a polygraph examination with respect to the Domino's killings. Mr. Leeds has advised me that I do not have to take this examination and I am doing so freely and voluntarily.
I have been advised that if I take the examination and it shows that I am not involved in the Domino's killing; the Elko County District Attorney's Office has agreed to file no further charges and take no further prosecutorial actions with regard to the charges that I am currently facing.
Lastly, under no circumstances may the results of, or the fact that a polygraph examination was administered, be referred to in any subsequent prosecution, without subsequent written approval of all parties signatory to this agreement.

(Exhibit 202 (as in original)). The agreement was signed by Rosas, Leeds, and Woodbury. (Id.).

         Two years later, in 1999, the district attorney's office brought die homicide charges. Rosas claimed that doing so was in violation of the polygraph agreement, and it became an issue for the trial court in July 2000. On July 25, 2000, Woodbury signed a declaration that "[t]here was no written memorandum." ...


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