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Velasco v. Filson

United States District Court, D. Nevada

September 12, 2017

TIMOTHY FILSON, et al., Respondents.



         Before the Court for decision is a habeas corpus petition under 28 U.S.C. § 2254 brought by Juan Alfonso Nuno Velasco, a Nevada Prisoner. (ECF No. 47.)


         On May 15, 2006, Nuno Velasco entered a guilty plea in the Second Judicial District Court for Nevada to the charge of second degree murder with use of deadly weapon. Nuno Velasco, along with his co-defendant Uriel Barajas Velasco, had originally been charged with open murder, first-degree kidnapping, and robbery with the use of a firearm, relating to the death of Antoinette Howard. According to preliminary hearing testimony, Nuno Velasco admitted to law enforcement officials that he (1) shot Howard in a Reno motel room, (2) wrapped her in a blanket and transported her body to California while she was still alive, and (3) shot her in the back of the head, at the direction of a man he referred to as “El Jefe, ” on the side of the highway where her body was later discovered.

         Prior to sentencing, Nuno Velasco filed a motion to withdraw the guilty plea, claiming, among other things, that he witnessed Alvaro “Sleepy” Romero shoot Howard in the Reno motel room and that Romero had admitted killing Howard to David Cerritos, a fellow inmate in the Washoe County jail, and to Roseanna Saldana, Romero's girlfriend at the time of the killing. At the hearing on the motion, however, Nuno Velasco's counsel advised the court that the defense team had spoken with Saldana, who indicated that she was not a percipient witness to the shooting and that Alvaro “Sleepy” Romero had not told her that he shot Howard. Counsel also notified the court that Cerritos had been administered a polygraph test, on which he performed poorly.

         The state district court denied the motion and subsequently sentenced Nuno Velasco to consecutive terms of ten to life. The judgment of conviction was entered on May 1, 2007. Nuno Velasco appealed. On appeal, he challenged the denial of his motion to withdraw his plea, asserting that he was coerced into pleading guilty and that he had a credible claim that he was innocent of the offense. The Nevada Supreme Court affirmed the conviction.

         Nuno Velasco then filed a petition for writ of habeas corpus and a supplemental counseled petition, which the state district court denied. Nuno Velasco appealed, raising three claims of ineffective assistance of counsel on appeal: (1) that counsel failed to conduct a proper pre-trial investigation, (2) that counsel failed to move for severance of his case from his co-defendant's case, and (3) that counsel failed to notify him of his rights under the Vienna Convention. The state district court held an evidentiary hearing and subsequently denied the petition. The Nevada Supreme Court affirmed the denial of relief.

         On August 12, 2013, this Court received Nuno Velasco's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1-1.) On February 16, 2016, Nuno Velasco filed the amended petition that is before the Court for a decision on the merits.[2](ECF No. 47)


         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).


         A. Ground 1

         In Ground 1, Nuno Velasco claims that his conviction and sentence are unconstitutional because the state district court did not allow him to withdraw his guilty plea. According to Nuno Velasco, it was constitutional error for the court to not permit withdrawal of his plea because (1) he had been threatened and feared for his life when he entered the plea, (2) he is actually innocent of the offense, and (3) the crime occurred in California, but he was charged with committing the crime in Nevada.

         In deciding Nuno Velasco's direct appeal, the Nevada Supreme Court addressed the claim alleged herein as Ground 1 as follows:

Nuno-Velasco's sole contention on appeal is that the district court erred in denying his presentence motion to withdraw his guilty plea. He asserts that he was coerced into the plea to help his cousin/codefendant and he has presented a credible claim of innocence. Along with the motion to withdraw his plea, Nuno-Velasco filed an affidavit in which he claimed (1) Howard was killed by Alvaro "Sleepy" Romero, (2) Romero admitted to David Cerritos and Roseanna Saldana that he killed Howard, (3) Roseanna Saldana possessed material information that would exonerate Nuno-Velasco, (4) Nuno-Velasco was being set up as a "fall guy'' for a drug cartel run by "El Jefe" Rogelio Silva, (5) the order to kill Howard was given by EI Jefe's son Samuel "Smokey” Silva to Alvaro Romero, and (6) the Silvas tried to kill Nuno-Velasco because Nuno-Velasco knew that Romero had killed Howard.
"A district court may, in its discretion, grant a defendant's [presentence] motion to withdraw a guilty plea for any 'substantial reason' if it is 'fair and just."'2 In considering "whether the defendant advanced a substantial, fair, and. just reason to withdraw a plea, the district court must consider the totality of the circumstances to determine whether the defendant entered the plea voluntarily, knowingly, and intelligently."3
The district court "has a duty to review the entire record to determine whether the plea was valid . . . [and] may not simply review the plea canvass in a vacuum."4
On appeal from the district court's determination, we will presume that the lower court correctly assessed the validity of the plea, and we will not reverse the lower court's determination absent a clear showing of an abuse of discretion.5 If the motion to withdraw is based on a claim that the guilty plea was not entered knowingly and intelligently, the burden to substantiate the claim remains with the appellant.6
There is no evidence in the record that the district court abused its discretion in denying Nuno-Velasco's presentence motion to withdraw his guilty plea. In considering Nuno-Velasco's motion the district court properly considered the totality of the circumstances, including (1) Nuno-Velasco's written motion and affidavit, (2) the transcript of his plea canvass, (3) the transcript of the preliminary hearing, (4) the representations of defense counsel, (5) all papers and pleadings on file, and (6) the defendant's own testimony. After review of the entire record, the district court concluded that Nuno-Velasco had not presented a credible claim of innocence or established that his plea was involuntarily entered and that there was no fair or just reason to permit withdrawal of the guilty plea.
The record indicates that Nuno-Velasco knowingly and voluntarily pleaded to second-degree murder. During the plea canvass, Nuno-Velasco denied that anyone had threatened him to get him to enter the plea of guilty. He admitted that he was entering a guilty plea to second-degree murder because he was in fact guilty of that crime. Nuno-Velasco stated that he understood the consequences of his plea. Likewise, in the guilty plea memorandum signed by Nuno-Velasco on May 15, 2006, he again acknowledged that his plea was not the result of any threats or ...

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