United States District Court, D. Nevada
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.
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,
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
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.
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.
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.
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.
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.
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).
Three, Six, Seven, Eight, Nine, and Ten have been fully
briefed and are before the court for decision.
STANDARDS OF REVIEW
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:
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.
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.
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
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, §
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).
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.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.
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
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
Id., p. 83.
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.
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.
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.
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
to Escobar, the failure to admit the printed statement was
contrary to the language of NRS 51.032(2)(a)
and violated his rights under the Confrontation Clause of the
Sixth and Fourteenth Amendments of the United States
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
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.
 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 ...