Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Madsen v. Baker

United States District Court, D. Nevada

April 11, 2018

PATRICK OWEN MADSEN, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         This pro se habeas proceeding comes before the Court for consideration of the remaining claim in petitioner's 28 U.S.C. § 2254 petition for writ of habeas corpus. (ECF No. 6.) Respondents have answered (ECF No. 28), and petitioner has replied (ECF No. 29). Following an order of the Court, respondents have filed a supplemental answer (ECF No. 42), and petitioner has filed a supplemental reply (ECF No. 43).

         I. BACKGROUND

         Petitioner herein challenges his convictions on two counts of lewdness with a child under the age of 14. (ECF No. 6.) The convictions arose out of incidents that took place between petitioner and 13-year-old A.A. on two separate dates in late May 2006, when petitioner was temporarily living with A.A.'s family. (ECF No. 12-17 at 57-60, 70; ECF No. 12-20 at 8.) In the first incident, A.A. testified that petitioner kissed her on the neck, licked her vagina, and then forced her to have sexual intercourse with him. (ECF No. 12-17 at 57-59.) In the second incident, A.A. testified that petitioner grabbed and licked her breasts and then forced her to have sex with him again. (Id. at 59-60.) A.A. did not immediately tell anyone about the incidents. (Id. at 60.)

         In late July 2006, A.A.'s mother was cleaning A.A.'s room and bathroom and found razors, scissors, a box that had been stabbed repeatedly, cigarette butts, and condoms. (Id. at 60-64, 68.) She asked A.A. about the box and the other things she found, and A.A. told her about the incidents with petitioner. (Id. at 60, 68-69.) A.A.'s mother confronted petitioner and then contacted police. (Id. at 69.)

         Officer Maribah Cowley interviewed A.A., A.A.'s mother, and petitioner. (ECF No. 12-20 at 6; ECF No. 12-17 at 60-61.) At trial, Cowley testified that petitioner told her he did not know where, when or how the incidents could have happened but that he drinks heavily; that when he drinks he goes to sleep and is done and can't be woken up; and that he did not know what happened and never intended to have sex with A.A. (ECF No. 12-20 at 7.) Cowley also testified that petitioner said “apparently he did have sex with [A.A.]. He does not deny that. He does not remember it.” (Id.)

         On December 20, 2006, petitioner was charged by way of criminal complaint with two counts of sexual assault with a minor under fourteen years of age and two counts of lewdness with a child under the age of fourteen. (ECF No. 9-1.) After a two-day trial, a jury found petitioner guilty on all four counts. (ECF Nos. 10-5, 10-6.) Following sentencing and entry of judgment, petitioner appealed. (ECF No. 10-15.)

         On December 14, 2009, the Nevada Supreme Court reversed and remanded. (ECF No. 11-17.) In relevant part, the court held that Cowley's statements about what A.A. had told her, including things A.A. said petitioner had said, had been erroneously admitted because in the context of the case those statements were hearsay and double hearsay. (Id. at 3-6.) The court noted specifically, however, that petitioner's statements to Cowley were properly admitted. (Id. at 4 n.2.)

         After a second trial, the jury again found petitioner guilty on all four counts. (ECF Nos. 12-20, 12-21.) Petitioner was sentenced to life with the possibility of parole after twenty years on the sexual assault counts, and to life with the possibility of parole after ten years on the lewdness counts-all counts to run concurrent. (ECF No. 13-3.) The judgment of conviction was issued on October 7, 2010. (ECF No. 13-4.)

         Petitioner appealed. (ECF No. 13-6.) On July 14, 2011, the Nevada Supreme Court affirmed in part, reversed in part, and remanded. (ECF No. 13-15.) The court affirmed the lewdness convictions but vacated the sexual assault convictions. (Id. at 3-4.) In so doing, the court rejected petitioner's assertion that there was insufficient evidence to support the convictions but found that the trial court's failure to give an instruction on reasonable mistaken consent required reversal of the sexual assault convictions. (Id. at 2-4.) On remand, the trial court granted a motion by the State to dismiss the criminal information as to the sexual assault charges. (ECF Nos. 13-18, 13-21.)

         On July 20, 2012, petitioner filed a post-conviction habeas petition in the state district court. (ECF No. 14-5.) On December 3, 2012, petitioner filed an amended habeas petition in the state district court. (ECF No. 14-9.) The state district court denied the amended petition by order filed October 8, 2013. (ECF No. 14-10.)

         Petitioner appealed the denial of his post-conviction habeas petition. (ECF No. 14-11.) On May 13, 2014, the Nevada Supreme Court affirmed. (ECF No. 14-18.) Remittitur issued on June 9, 2014. (ECF No. 14-19.)

         On November 4, 2014, petitioner dispatched the instant federal habeas petition to this Court. (ECF No. 6 at 1.) Respondents moved to dismiss the petition (ECF No. 8), and the Court found that Grounds 1, 2, and 3 were unexhausted (ECF No. 22). Petitioner thereafter abandoned his unexhausted claims. (ECF No. 23.) Thus, the only ground remaining for the Court's consideration is Ground 4.

         II. LEGAL STANDARD

         28 U.S.C. § 2254(d) provides the legal standards for this court's consideration of the merits of the petition in this case:

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.

         AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). This court's ability to grant a writ is limited to cases where “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.