United States District Court, D. Nevada
MARTINEZ S. AYTCH, Petitioner,
ROBERT LEGRAND et al., Respondents.
C. JONES UNITED STATES DISTRICT JUDGE.
a habeas corpus Petition under 28 U.S.C. § 2254.
Martinez Aytch, a prisoner in the custody of the State of
Nevada, challenges his 2008 Nevada state convictions for
grand larceny and burglary.
[O]n December 24, 2006, Tara Pelaccio was at a bar near her
house. She hung her jacket on the back of her chair and
placed her keys and cell phone in the left pocket of her
jacket. Shortly thereafter, Aytch and a female companion,
Charma McCollum, approached Pelaccio. Aytch stood on her left
and McCollum on the right. McCollum introduced herself as
“Jello” and when Pelaccio turned to speak to her,
Aytch abruptly left the bar. Then McCollum left. When
Pelaccio was about to leave the bar, she noticed that her
keys and cell phone were missing. The bartender called the
police. Another bar patron went outside and saw Aytch and
McCollum get into a white van with the partial license plate
number “832.” A short time later, the police
stopped a white van with license plate number 832-TVD. Aytch
and McCollum were inside, and Pelaccio's keys and cell
phone were found in the center console of the van. A search
of the van also uncovered luggage, a telescope, clothing, and
other items belonging to Pelaccio.
Police investigators accompanied Pelaccio to her apartment
where they found the door ajar. Although there was no sign of
forced entry, the house had been “trashed.”
(Nev. Sup. Ct. Op. 1-2, No. 51386, ECF No. 19-16 (affirming
Petitioner's conviction on direct appeal). Aytch was
charged with one count of conspiracy to commit larceny under
Nevada Revised Statutes section (“NRS”) §
199.480, two counts of grand larceny under NRS 205.220 and
205.222, and one count of burglary under NRS 205.060. (Second
Am. Inf. 2-4, ECF No. 19-4). McCollum was indicted on the
same charges. (Inf. 2-4, ECF No. 17-11). The State informed
Aytch that it would be seeking to apply the habitual criminal
statute, NRS 207.010, in light of his two prior convictions
for armed robbery, two prior convictions for burglary, one
prior conviction for theft, and one prior conviction for
robbery of a victim over sixty-five years old. (Second Am.
was acquitted of conspiracy but convicted on both counts of
grand larceny and one count of robbery on January 16, 2008.
(Verdict, ECF No. 17-16). McCollum was acquitted of all
charges. (Verdict, ECF No. 17-14). The trial court sentenced
Aytch to concurrent life sentences, with parole eligibility
after ten years, for each of the three counts. (J., ECF No.
19-7). Aytch appealed, and the Nevada Supreme Court affirmed.
(Nev. Sup. Ct. Op., No. 51386). Aytch filed a state petition
for a writ of habeas corpus on July 1, 2009. (State H.C.
Pet., ECF No. 20). The state court denied the petition, he
appealed, and the Nevada Supreme Court affirmed. (Nev. Sup.
Ct. Op., No. 54832, ECF No. 20-13).
filed the present Petition on December 8, 2010, amending it
on September 27, 2011. (ECF Nos. 4, 16). The Court ruled that
several grounds were unexhausted and granted a stay for Aytch
to exhaust them in state court. (ECF Nos. 33, 45). The Nevada
Supreme Court found Aytch's new state petition successive
and untimely. (Nev. Sup. Ct. Op., No. 65843, ECF No. 48-14).
The Court reopened the present Petition on January 9, 2015.
(ECF No. 49). Grounds 2(b), 2(f), 2(g), 2(h)(ii), 3, 4, and 6
have been variously dismissed or abandoned. (ECF Nos. 55,
65). The State answered, and Aytch replied. (ECF Nos. 67,
73). The Court now adjudicates the remaining Grounds of the
Petition on the merits.
2254(d) of Title 28, a provision of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), provides
the legal standards for a federal court's consideration
of a petition for habeas corpus by a prisoner in state
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;
(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). These standards of review
“reflect the . . . general requirement that federal
courts not disturb state court determinations unless the
state court has failed to follow the law as explicated by the
Supreme Court.” Davis v. Kramer, 167 F.3d 494,
500 (9th Cir. 1999). This Court's ability to grant a writ
is limited to cases where “there is no possibility
fair-minded jurists could disagree that the state court's
decision conflicts with [Supreme Court] precedents.”
Harrington v. Richter, 131 S.Ct. 770, 786 (2011).
“[A] state court decision is ‘contrary to our
clearly established precedent if the state court applies a
rule that contradicts the governing law set forth in our
cases' or ‘if the state court confronts a set of
facts that are materially indistinguishable from a decision
of this Court and nevertheless arrives at a result different
from our precedent.'” Lockyer v. Andrade,
538 U.S. 63, 73 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)). A state court decision is an
unreasonable application of clearly established Supreme Court
precedent, “if the state court identifies the correct
governing legal principle from our decisions but unreasonably
applies that principle to the facts of the prisoner's
case.” Id. at 74 (quoting Williams,
529 U.S. at 413). The “unreasonable application”
standard requires the state court decision to be more than
incorrect or erroneous; the state court's application of
clearly established law must be objectively unreasonable.
Id. (quoting Williams, 529 U.S. at 409).
determining whether a state court decision is contrary to
federal law, a federal court looks to the last reasoned
decision in the state courts. See Ylst v.
Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford
v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000),
cert. denied, 534 U.S. 944 (2001). Furthermore,
“a determination of a factual issue made by a State
court shall be presumed to be correct, ” and a
petitioner “shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
argues that there was insufficient evidence to sustain a
conviction for each count of grand larceny and burglary. The
argument hinges on Jackson v. Virginia, wherein the
Supreme Court held that a conviction comports with due
process if “any rational trier of fact could have found
essential elements of the crime beyond a reasonable
doubt” when viewing “all of the evidence . . . in
the light most favorable to the prosecution.” 443 U.S.
307, 319 (1979). This “standard must be applied with
explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id.
at 324 n.16. “Under Jackson, federal courts
must look to state law for ‘the substantive elements of
the criminal offense, ' but the minimum amount of
evidence that the Due Process Clause requires to prove the
offense is purely a matter of federal law.” Coleman
v. Johnson, 132 S.Ct. 2060, 2064 (2012) (per curiam)
Court applies the deferential standards of Jackson
through the deferential lens of AEDPA in examining
Aytch's argument that the Nevada Supreme Court erred when
it found a rational trier of fact could have found him guilty
beyond a reasonable doubt, i.e., this Court applies a
“double layer of deference.” Smith v.
Mitchell, 624 F.3d 1235, 1239 (9th Cir. 2010). Aytch
“faces a heavy burden when challenging the sufficiency
of the evidence used to obtain a state conviction on federal
due process grounds.” Juan H. v. Allen, 408
F.3d 1262, 1274 (9th Cir. 2005).
1 has three subparts. First, Aytch argues there was
insufficient evidence to support count 2 (the theft of the
cell phone and keys from the jacket). Second, he argues there
was insufficient evidence to support count 4 (the theft of
the telescope, suitcase, and clothing from the apartment).
Third, he argues there was insufficient evidence to support
count 3 (the burglary of the apartment).