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Jimenez v. Williams

United States District Court, D. Nevada

July 16, 2018

FRANCISCO JIMENEZ, Petitioner,
v.
BRIAN E. WILLIAMS, Respondent.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         This habeas matter under 28 U.S.C. § 2254 comes before me for a decision on the merits on the sole remaining ground.

         Background

         Petitioner Francisco Jimenez challenges his 2011 Nevada state conviction, pursuant to a guilty plea, on one count of conspiracy to commit robbery, two counts of robbery with the use of a deadly weapon, two counts of first-degree kidnapping, and one count of attempted murder with the use of a deadly weapon. ECF No. 14-19; Exhibit 19.

         In the single ground that remains, Jimenez alleges that he was denied effective assistance of counsel because defense counsel advised him to plead guilty to the two counts of first-degree kidnapping despite there allegedly being insufficient evidence to support a conviction for kidnapping under Nevada law. Jimenez contends that the evidence was insufficient under the standards outlined in Mendoza v. State, 122 Nev. 267, 130 P.3d 176 (2006), because the movement of the victims allegedly was incidental to robberies with the use of a deadly weapon. ECF No. 7, at 3-6.

         Jimenez unconditionally waived a preliminary hearing because he had reached a plea bargain with the State. ECF No. 14-2; Exhibit 2. The State therefore had no occasion to present any of the evidence that it had against Jimenez.

         Petitioner was appointed different counsel on a motion to withdraw his plea. Replacement counsel summarized the State's evidence while alleging on Jimenez' behalf that pre-plea counsel had coerced Jimenez into pleading guilty despite having told him previously that the evidence was insufficient on the kidnapping charges. ECF No. 14-15, at 4-5; Exhibit 15, at 3-4. Counsel repeated the factual summary on direct appeal, the State adopted the summary in its fast-track response, and the summary thus formed the uncontested factual backdrop for the decision of the state supreme court on direct appeal. ECF No. 14-21, at 8-9; Exhibit 21, at 7-8. ECF No. 14-22, at 5; Exhibit 22, at 4. Thereafter, Jimenez' post-conviction counsel - in seeking to establish ineffective assistance of pre-plea counsel due to alleged insufficiency of the evidence on the kidnapping charges - provided a more detailed summary of the State's evidence as reflected by the police reports and witness statements that then were available. ECF No. 14-26, at 4-7; Exhibit 26, at 3-6. Counsel repeated this more detailed summary almost in full on the post-conviction appeal. ECF No. 14-32, at 8-11; Exhibit 32, at 7-10. While the State did not adopt the factual recital, it did not challenge any of the specifics. See ECF No. 14-33, at 6; Exhibit 33, at 5.[1] As discussed further, infra, Jimenez' summary of the State's evidence formed the factual backdrop for the state supreme court's decision on the merits of the claim. See ECF No. 14-34, at 3; Exhibit 34, at 2. On federal habeas review, Jimenez has not challenged the accuracy of summaries of the State's evidence provided by his post-plea and post-conviction counsel that served as the factual backdrop for the decisions of the state courts.

         Petitioner's summary reflected that the State would have presented evidence at a trial tending to establish the following with respect to the criminal episodes.[2]

         On the evening of January 4, 2007, five Hispanic males entered a Quick Stop convenience store. Two of the males went to the counter ostensibly to purchase some beer. The two men then drew handguns and forced the employees at the counter to the floor. Another one of the males then walked around the counter and bound the employees with zip ties. Meanwhile, another one of the males had been watching the door. He would “contact” customers as they entered the door by placing a handgun in their back and forcing them to the furthest aisle away from the door. Another male then would bind the customers with zip ties. ECF No. 14-32, at 8-9; Exhibit 32, at 7-8.

         A second incident at an American Mini Market convenience store the next evening followed much the same pattern, although the summary description provided more detail. Five to possibly six Hispanic males entered the store and split up, with one male - believed by the police to be Jimenez - remaining by the door. Three employees were in the store. They were cashier Abraham Marquez, Luis Alvarado in the meat market, and Anjelica Alvarado at the main cash register. Two suspects robbed Luis Alvarado at gunpoint, and multiple suspects robbed Anjelica Alvarado also at gunpoint. The men escorted employees and customers at gunpoint into a back room of the store, made them lie down, and tied them up with zip ties. They did not bind Abraham Marquez and Anjelica Alvarado, however, apparently in the latter case because she was pregnant. ECF No. 14-32, at 9-11; Exhibit 32, at 8-10.

         Similar to the other incident, the male by the door would escort any additional customers that came into the store to the back room at gunpoint. ECF No. 14-32, at 10; Exhibit 32, at 9.

         Customer Abel Mata stated that he entered the American Mini Market to cash his paycheck. As he entered, one of the males pointed a gun at him, escorted him to the back room, and told him to lie down. Once he was on the floor, another male zip-tied his hands and feet. ECF No. 14-32, at 10-11; Exhibit 32, at 9-10.

         The American Mini Market incident did not end well. Abraham Marquez shot two of the accomplices, mortally wounding Jesus Galindo Nunez. The police subsequently found Moises Araujo-Amaya a short distance from the store with a bullet wound in his buttocks. Araujo-Amaya told officers that he and the same accomplices from the American Mini Market incident, including Jimenez, had robbed the Quick Stop the evening before. Abraham Marquez sustained a grazing shot to his left shoulder. ECF No. 14-21, at 8-9; Exhibit 21, at 7-8. ECF No. 14-26, at 7; Exhibit 26, at 6.[3]

         The factual recitals in the state courts did not reflect that any of the customers who were moved to less visible locations within the stores at gunpoint and then bound were robbed.

         Prior to his guilty plea, Jimenez was charged - as a principal, aider and abettor, and/or coconspirator - with a total of eighteen offenses. ECF No. 14-1; Exhibit 1. ECF No. 14-2, at 5; Exhibit 2, at 5.

         The charged offenses included one count of conspiracy to commit three robberies as charged with respect to the Quick Stop and American Mini Market incidents. Count 1 in ECF No. 14-1; Exhibit 1.

         With regard to the Quick Stop incident, Jimenez was charged with: (1) one count of burglary while in possession of a firearm; (2) two counts of robbery with the use of a deadly weapon for robberies respectively of Faris Yalda and Alma Luyon; and (3) four counts of first-degree kidnapping with the use of a deadly weapon for kidnappings respectively of Faris Yalda, Alma Luyon, Tomas Leon, and Martin Little. Counts 2 through 8 in ECF No. 14-1; Exhibit 1. No. robberies were alleged as to Tomas Leon and Martin Little, and they thus appeared to be customers who were moved and bound during the incident rather than employees who were robbed.

         With regard to the American Mini Market incident, Jimenez was charged with: (1) one count of burglary while in possession of a firearm; (2) one count of robbery with the use of a deadly weapon for a robbery of Abraham Marquez; (3) seven counts of first-degree kidnapping with the use of a deadly weapon for kidnappings respectively of Abraham Marquez, Luis Alvarado, Angelica Alvarado, Ana Marquz, Abel Mata, Bobby Klepper and Kevin Aden; and (4) one count of attempted murder with the use of a deadly weapon for an attempted murder of Abraham Marquez. Counts 9 through 18 in ECF No. 14-1; Exhibit 1. The only robbery charged for the American Mini Market incident was a robbery of store employee Abraham Marquez. Luis Alvarado and Angelica Alvarado also were store employees.

         Abel Mata was not.

         Prior to his plea, Jimenez faced extensive sentencing exposure on the eighteen counts with which he was charged under the law applicable to the January 2007 offenses.

         At the outset, over and above the exposure on the underlying primary offenses on the robbery, first-degree kidnapping, and attempted murder charges, he faced exposure as well to a weapon enhancement carrying an additional consecutive sentence equal to the sentence imposed for the primary offense. See N.R.S. 193.165, as amended through 1995 Laws, ch. 624, § 1, at p. 1431.

         Together with the consecutive weapon enhancement sentences on those charges under the foregoing provision, Jimenez faced possible sentencing to: (1) 1 to 6 years on the conspiracy to commit robbery count, pursuant to N.R.S. 199.480, as amended through 1999 Laws, ch. 320, § 1, at p. 1343; (2) 2 to 15 years on each one of the two counts of burglary while in possession of a firearm, pursuant to N.R.S. 205.060(4), as amended through 2005 Laws, ch. 126, § 1, at p. 416; (3) 2 to 15 years, along with an equal consecutive sentence, on each one of the three counts of robbery with the use of a deadly weapon, pursuant to N.R.S. 200.380; (4) life with the possibility of parole after 5 years or a definite term of 15 years with the possibility of parole after 5 years, along with an equal consecutive sentence, on each one of the eleven counts of first-degree kidnapping with the use of a deadly weapon, pursuant to N.R.S. 200.320; and (5) 2 to 20 years, along with an equal consecutive sentence, on the attempted murder with the use of a deadly weapon count, pursuant to N.R.S. 193.330(1)(a)(1), as amended through 1997 Laws, ch. 314, § 2, at pp. 1178-79.

         Jimenez therefore faced a maximum possible sentencing exposure on the eighteen counts of consecutive determinate sentences totaling 146 years in turn further consecutive to 22 consecutive life sentences with parole eligibility after 5 years on each life sentence. If Jimenez had been convicted on all 11 counts of first-degree kidnapping with the use of a deadly weapon and sentenced as above, he would have had to serve 110 years on those counts alone before eligibility for a parole outside of prison walls, subject also to the determinate sentences on the remaining counts. Even as a young man, Jimenez thus faced a substantial risk of being imprisoned for the rest of his life on the charges pending prior to his plea.

         Jimenez pled guilty instead to one count of conspiracy to commit robbery, two counts of robbery with the use of a deadly weapon, two counts of first-degree kidnapping, and one count of attempted murder with the use of a deadly weapon. ECF No. 14-19; Exhibit 19.

         He thus reduced his exposure to sentencing on: (1) two counts of robbery with the use of a deadly weapon rather than three such counts; and (2) only two counts of first-degree kidnapping - with no weapon enhancement - rather than eleven counts of first-degree kidnapping with the use of a deadly weapon. Moreover, the parties stipulated that only the sentences on the two counts of robbery with the use of a deadly weapon would run consecutively and that the sentences on the other counts would run concurrently with the robbery with use counts and with each other. Further, the State agreed that it would not argue for more than 25 years on the top end on the robbery with use counts. ECF No. 14-8, at 2-3 & 10-12; Exhibit 8, at 1-2 and exhibit thereto.

         In the information to which Jimenez entered a guilty plea, inter alia: (1) the prior four counts of first-degree kidnapping with the use of a deadly weapon during the Quick Stop incident essentially were collapsed into a single count charging Jimenez with the first-degree kidnapping, without a weapon enhancement, of Faris Yald and/or Alma Luyon and/or Thomas Leon and/or Martin Little; and (2) the prior seven counts of first-degree kidnapping with the use of a deadly weapon during the American Mini Mart incident similarly essentially were collapsed into a single count charging Jimenez with the first-degree kidnapping, without a weapon enhancement, of Abraham Marquez and/or Luis Alvarado and/or Angelica Alvarado and/or Ana Marquez and/or Abel Mata and/or Bobby Klepper and/or Kevin Aden. ECF No. 14-8, at 10-12; Exhibit 8, exhibit thereto.[4]Jimenez thus was charged in each such first-degree kidnapping count with kidnapping persons who the coconspirators were not alleged to have robbed, including customers such as Abel Mata.

         During the plea colloquy, Jimenez specifically admitted, inter alia, on the one count that he kidnapped Faris Yald and/or Alma Luyon and/or Thomas Leon and/or Martin Little and on the other that he kidnapped Abraham Marquez and/or Luis Alvarado and/or Angelica Alvarado and/or Ana Marquez and/or Abel Mata and/or Bobby Klepper and/or Kevin Aden. The district court judge substantially tracked the language of the information on each count and then asked Jimenez whether he had committed those acts. He affirmed that he did. ECF No. 14-10, at 8-9; Exhibit 10, at 7-8.

         Jimenez was sentenced on each count of robbery with the use of a deadly weapon to consecutive sentences of 28 to 150 months, or 56 to 300 months on each consecutive count. The sentences on the remaining charges, including the two counts of first-degree kidnapping, were imposed concurrently with the sentences on, respectively, one or the other robbery with use counts. The minimum sentences on the two first-degree kidnapping counts and on the one attempted murder with the use of a deadly weapon count ran several months longer than the minimum combined sentence on a count of robbery with the use of a deadly weapon. However, the longest top end sentences imposed in the judgment of conviction were on the robbery with use counts. ECF No. 14-19; Exhibit 19.

         Jimenez challenged the conviction via motions to withdraw guilty plea, on direct appeal, and via a state post-conviction petition.

         Governin ...


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