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Aytch v. Legrand

United States District Court, D. Nevada

January 2, 2018

MARTINEZ S. AYTCH, Petitioner,
ROBERT LEGRAND et al., Respondents.



         This is 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. Inf. 5-6).

         Aytch 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).

         Aytch 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.


         A. Legal Standards

         Section 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 custody:

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). 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).

         In 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).

         B. The Merits

         1. Ground 1

         Aytch 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) (citation omitted).

         The 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).

         Ground 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).

         a. ...

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