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Escobar v. Williams

United States District Court, D. Nevada

July 10, 2018

CARLOS ESCOBAR, Petitioner,
v.
BRIAN E. WILLIAMS, et al., Respondents.

          ORDER

         Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Carlos Escobar, a Nevada prisoner. ECF No. 11.

         I. BACKGROUND[1]

         Escobar was convicted in the state district court for Clark County, Nevada, of discharge of a firearm at or into a vehicle (count I), attempted murder with the use of a deadly weapon (count II), and first-degree murder with the use of a deadly weapon (count III). At trial, the State presented evidence that, on September 28, 1995, Escobar got into a heated argument with Wilfredo Sanchez that culminated in Escobar taking a handgun from his companion Carlos Cruz's waistband and shooting Sanchez four times, but not killing him. The State's evidence further established that Escobar fired several shots into a van parked nearby, killing one of its occupants, Daniel Arreguin.[2]

         On November 12, 1998, the court sentenced Escobar to 16-72 months on count I, 53-240 months on count II, plus an equal and consecutive sentence of 53-240 months for the enhancement on count II (to run concurrently with count I), and life without the possibility of parole, plus an equal and consecutive sentence of life without the possibility of parole for the enhancement on count III (to run consecutively to count II). A judgment of conviction was entered on December 2, 1998. Escobar appealed. On August 11, 2000, the Nevada Supreme Court affirmed the judgment of the district court.

         On November 14, 2000, Escobar filed a proper person state habeas petition in the state district court. After appointed counsel delayed in filing a supplemental state habeas petition, Escobar filed a proper person petition for writ of mandamus with the Nevada Supreme Court. The court granted the petition, ordering the state district court to appoint new habeas counsel. Following appointment of new counsel, Escobar filed a supplemental brief in support of writ of habeas corpus on November 5, 2007, and an amended supplemental brief on December 3, 2007.

         Following a hearing in the state district court, the court denied the state habeas petitions. Escobar appealed. On September 29, 2010, the Nevada Supreme Court affirmed.

         Escobar then initiated this proceeding in November 2010. Having been appointed counsel, Escobar filed an amended petition for writ of habeas corpus on October 27, 2011.

         On February 19, 2013, this court granted, in part, respondents' motion to dismiss claims in that petition, finding Ground One to be procedurally barred and finding Grounds Two, Three, Four, Five, Six, and Ten to be unexhausted. The court subsequently granted Escobar's motion for stay and abeyance to allow him to exhaust state court remedies for the unexhausted claims.

         On April 19, 2013, Escobar filed his second state habeas petition. The state district court denied the petition, finding the petition untimely pursuant to Nev. Rev. Stat. § 34.726, second and successive pursuant to Nev. Rev. Stat. § 34.810, and barred by laches pursuant to Nev. Rev. Stat. § 34.800. On September 16, 2014, the Nevada Supreme Court affirmed the denial of the second state habeas petition, imposing both § 34.726 and § 34.810. The court also found that Escobar failed to demonstrate cause and prejudice to overcome the procedural bars.

         On January 8, 2015, this court granted Escobar's motion to reopen this federal action. Respondents then moved to dismiss Grounds Two, Three, Four, Five, Six, and Ten of Escobar's amended federal petition as procedurally defaulted. This court granted respondents' motion as to Grounds Two, Four, and Five, but reserved judgment as to Grounds Three, Six, and Ten, pending a determination whether petitioner's defaults should be excused under Martinez v. Ryan, 566 U.S. 1 (2012).

         Grounds Three, Six, Seven, Eight, Nine, and Ten have been fully briefed and are before the court for decision.

         II. STANDARDS OF REVIEW

         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.

         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).

         III. DISCUSSION[3]

         Ground Seven

         In Ground Seven, Escobar claims that his constitutional right to confront witnesses against him was violated when the trial court denied admission of a statement written by defense witness Giorgianna Arellano. Arellano, the manager of an apartment complex in California, was called by the State as a rebuttal witness and testified that Escobar had visited his sister at the complex, but had never lived there. ECF No. 15-19, p. 62-70.[4]On cross-examination, Escobar's counsel impeached her testimony with her prior written statement on a photo lineup form that identified Escobar as a previous resident who lived with his sister. Id., p. 73-77.

         When defense moved to admit the photo lineup form, the court sustained the State's objection to its admission. Id., p. 77-78. Following additional argument on the issue, the trial court confirmed its ruling, stating as follows:

Well, whether alibi or not, the witness testified she did, in fact, make the statement. The witness testified that that is how she, in fact, filled it out. The witness testified later that on rethought that was incorrect. So the jury has all that before them. So with her having testified, the Court saw and sees no reason for its admission. The record has been made.

Id., p. 83.

         Escobar argued to the Nevada Supreme Court on direct appeal that the trial court's ruling violated his rights under the Confrontation Clause of the Sixth and Fourteenth Amendments. ECF No. 16-10, p. 29-32. The Nevada Supreme Court addressed the claim as follows:

Escobar next contends that the district court committed reversible error by refusing evidence of a written prior inconsistent statement of a rebuttal witness called to testify by the State.

         Giorgianna Arellano was the apartment manager of a Los Angeles apartment complex where Escobar's sister resided. She was called as a rebuttal witness by the State to contradict testimony by Escobar that he left Las Vegas to reside in California with his sister just after the shooting.

         When questioned by a district attorney's investigator about Escobar, Arellano was shown a photographic line-up and identified Escobar as an individual she had seen within the apartment complex. Arellano also gave a written statement on which she wrote, “number 5A is the only picture that looks familiar to me. It looks like a previous resident that lived with his sister.” At trial, however, Arellano testified that her printed statement was incorrect and that she had intended to convey that Escobar used to visit relatives residing in the apartment complex.

         Escobar attempted to admit Arellano's printed statement into evidence. The State objected on the grounds that “it would over emphasize her testimony, and she's already explained her testimony and already described what she said in the statement.” The district court sustained the State's objection.

         According to Escobar, the failure to admit the printed statement was contrary to the language of NRS 51.032(2)(a)[1] and violated his rights under the Confrontation Clause of the Sixth and Fourteenth Amendments of the United States Constitution.

         The determination of whether to admit evidence is within the sound discretion of the district court, and that determination will not be disturbed unless manifestly wrong. See Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). Pursuant to NRS 51.035(2)(a), a prior inconsistent statement may be admissible for both substantive and impeachment purposes when the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is inconsistent with his testimony.

         We conclude that the district court did not err in failing to admit the written statement. Although there was no compelling reason to reject admissibility of the written statement, failure to formally admit it into evidence did not prejudice Escobar. First, the statement would not have served to exculpate him; second, the jury was made fully aware of the inconsistencies through oral examination of the witness by Escobar's counsel. See Miranda v. State, 101 Nev. 562, 567, 707 P.2d 1121, 1124 (1985). Moreover, whether Escobar continuously lived in California subsequent to the shooting was wholly a collateral matter.

[1] NRS 51.035(2)(a) provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement ...


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