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.

Navas v. Baca

United States District Court, D. Nevada

May 22, 2019

JULIO CESAR NAVAS, Petitioner,
v.
JAMES BACA, et al., Respondents.

          ORDER

          ROBERT C. JONES, UNITED STATES DISTRICT JUDGE

         This second-amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by state prisoner Julio Cesar Navas is before the court for final disposition on the merits (ECF No. 64). Respondents have answered the petition (ECF No. 103), and Navas replied (ECF No. 109).

         I. Procedural History and Background

         As set forth in this court's order on respondents' motion to dismiss, on July 23, 2003, Navas entered a nolo contendere plea in state No. CR02-2190 to count II: lewdness with a child under the age of fourteen years and counts III and IV: open or gross lewdness (exhibit 30).[1] The state district court sentenced him as follows: count II - life with the possibility of parole after 10 years; count III - 12 months, concurrent with count II; count IV - 12 months, concurrent with counts II and III. Exh. 34. Also on July 23, 2003, Navas entered a nolo contendere plea in state No. CR03-0647 to intimidating or bribing a witness. Exh. 31. The state district court sentenced him to 23 to 32 months, concurrent with the sentence imposed in CR02-2190. Exh. 35.

         Navas appealed both convictions, and the Nevada Supreme Court approved a stipulation of the parties to consolidate the appeals. See exh. 72. On April 26, 2004, the state supreme court issued an order of limited remand for the purpose of securing new counsel for Navas. Id. The state district court appointed new counsel, and the parties filed a supplemental fast track statement and response. Exhs. 84, 86, 87.

         On January 20, 2005, the Nevada Supreme Court vacated the judgments and remanded in order to afford Navas the opportunity to file a counseled motion to withdraw his pleas. Exh. 89. Remittitur issued on February 15, 2005. Exh. 91. On May 31, 2005, Navas filed a motion to withdraw both pleas. Exh. 93. The state district court granted the motion. Exh. 96.

         On February 8, 2006, a jury convicted Navas in No. CR02-2190 of count I: sexual assault on a child; count II: lewdness with a child under the age of fourteen years; and counts III and IV: open or gross lewdness. Exh. 126. The jury also convicted him in No. CR03-0647 of intimidating or bribing a witness. Id. The state district court sentenced him as follows: count I - life with the possibility of parole after 20 years; count II - life with the possibility of parole after 10 years, consecutive to count I; and counts III and IV - two terms of 12 months, concurrent with count I. Exh. 132. In No. CR03-0647, he was sentenced to 24 to 60 months, concurrent with No. CR02-2190. Exh. 130.

         Navas appealed in both cases, and the Nevada Supreme Court consolidated the appeals. Exhs. 134, 135, 142. The state supreme court affirmed the judgments on December 12, 2008, and remittitur issued on January 6, 2009. Exhs. 165, 166.

         Navas filed a state postconviction habeas petition on November 30, 2009. Exh. 170. The state district court conducted an evidentiary hearing, granted the petition as to the claim of ineffective assistance of counsel (IAC) with respect to the sexual assault conviction, and denied the petition as to IAC claims with respect to the lewdness with minors and witness intimidating convictions. Exh. 200. Amended judgments of conviction were entered. Exh. 204. Both parties appealed. On April 15, 2015, the Nevada Supreme Court affirmed the state district court's order. Exh. 201.

         In the meantime, Navas had dispatched his federal habeas petition for filing on October 12, 2010 (ECF No. 5). This court granted respondents' motion to dismiss in part, concluding that certain federal grounds had not been exhausted in state court (ECF No. 38). Navas, through counsel, filed a notice with the court stating that he would not be filing a motion to dismiss some or all grounds of the federal petition and indicating that he understood failure to file such a motion would result in the dismissal of his federal petition without prejudice (ECF No. 39). Accordingly, on May 17, 2013, this court dismissed the federal petition without prejudice (ECF No. 40). On July 9, 2015, the Ninth Circuit Court of Appeals reversed and remanded (ECF No. 46). The court of appeals noted that the Nevada Supreme Court had granted Navas limited postconviction relief in its order dated April 15, 2015. Id. The court of appeals stated that Navas was neither procedurally barred nor time-barred from filing a new federal petition and that Navas had fully exhausted the claims in his amended federal petition. Id.

         On June 22, 2016, Navas filed a counseled second-amended federal petition (ECF No. 64). Respondents have answered the petition (ECF No. 103), and Navas replied (ECF No. 109).

         II. Legal Standard under the Antiterrorism and Effective Death Penalty Act

         28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration 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.

         The 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 fair-minded 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 “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 state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 694.

         A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Lockyer, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause 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).

         To the extent that the state court's factual findings are challenged, the “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause requires that the federal courts “must be particularly deferential” to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires substantially more deference:

.... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Cullen, 563 U.S. at 181.

         III. Trial Testimony

         The trial testimony reflected that Julio Navas and his wife Ana adopted three sisters. Julia, the oldest sister, testified that she met Ana Navas when Ana was an assistant teacher at Julia's middle school. Exh. 122, pp. 26-42. Julia and her two sisters had previously lived her their biological mother. Julia stated that her father was somewhere in Mexico; at the time of trial she had not had any contact with him for twelve years. When their mother was incarcerated on drug convictions, Julia asked Ana to adopt them and Ana and Navas agreed.

         Julia stated that starting when she was fourteen Navas would have her take off her shirt and bra. He said he was checking for pimples or cancer. Navas would rub lotion on her breasts. She said he would have her take off her pants and underwear, squat or lie down, and he would look at her genitals. She stated that these incidences continued for longer than a month and stopped when Navas was arrested. Julia testified that she did not tell anyone because she feared she would be separated from her sisters. Id.

         Alma, the middle sister, testified that she is one year younger than Julia. Id. at 43-54. Alma said she and her sisters lived with Ana and Julio Navas for about two years. She stated that when she was about fourteen Navas would have her remove her shirt and bra and rub lotion on her breasts. He said it was to check for pimples or cancer. Alma would tell him to stop but he would not. She testified that these incidents began about four months after the girls moved in and stopped when the girls told Ana, which led to Navas' arrest. Id.

         The youngest sister, Maria, testified that Navas began touching her about three or four months after the girls moved in. Id. at 55-68. She was nine years old. Navas told her that one of his daughters had died from some sort of infection;[2] he would call her into the bathroom, have her undress, and rub lotion on her breasts and between her thighs. It would happen twice a week, on Navas' days off, when Ana left to take the older girls to school and before Maria went to the school bus. Maria stated that on one occasion Navas was rubbing lotion between her thighs and then “I guess he put his finger inside or something and it really hurt . . . . Because it just felt like his finger went into my body . . . ” Id. at 62. Maria stated that she told Navas she was going to tell Ana, and Navas told her if she did she would go to a foster home and never see her sisters again. Maria stated that Ana and Navas began to have marital trouble. Ana asked the girls if they wanted to stay with Navas. Maria said no and told her about Navas' actions. Id.

         Police officer Jean Walsh testified that, after interviewing the three sisters and Ana, she went to Navas' house in July 2002. Exh. 123, pp. 37-54. Walsh told Navas that he was under arrest; he agreed to go down to the police station to discuss the allegations. Navas told Walsh that the girls made up the story because they did not want Navas to tell the police about their stepfather Pedro's (their biological mother's boyfriend) involvement with drugs. He also said Ana convinced the girls to make up the allegations. He denied touching the girls. Walsh testified that at some point in the interview Navas invoked his right to have an attorney present; at that time, she discontinued the questioning. Id.

         Julio Navas' then ex-wife Ana testified. Id. at 55-89. She testified that after the marriage deteriorated, she decided to get a divorce. She planned to go live with her older son, who was not Navas' son, and she was not going to take the girls with her because she was unable to support them. She told the girls she planned to leave. The girls were very upset and insisted she take them with her. Maria finally told Ana that she did not want to stay with Navas because he was touching her. Ana testified that none of the girls had any skin problems or cancer, and no one had prescription lotion of any kind. Id.

         IV. Instant Petition

         a. Claims Rejected on Direct Appeal

         Ground 3

         Navas contends that the prosecutor improperly elicited Officer Walsh's testimony that Navas invoked his right to counsel in violation of his Fifth, Sixth and Fourteenth Amendment rights (ECF No. 64, pp. 43-46).

         Prosecutorial misconduct may “‘so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.'” Greer v. Miller, 483 U.S. 756, 765 (1987), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, the prosecutorial misconduct must be “‘of sufficient significance to result in the denial of the defendant's right to a fair trial.'” Greer, 483 U.S. at 765, quoting United States v. Bagley, 473 U.S. 667, 676 (1985).

         As set forth above, the prosecutor elicited testimony from Officer Walsh that she interviewed Navas after his arrest and that when Navas invoked his right to have an attorney present the interview terminated. Exh. 123, p. 47. Navas did not object to the testimony at trial.

         The Nevada Supreme Court rejected this claim, reasoning:

The detective's comment was error. However, Navas must demonstrate that the error affected his substantial rights. Navas has failed to show how this one reference to his right to silence prejudiced him or affected his substantial rights. Reference to a defendant's post-arrest silence is harmless beyond a reasonable doubt if "(1) at trial there was only a mere passing reference, without more, to an accused's post-arrest silence, or (2) there is overwhelming evidence of guilt." Sampson v. State, 122 P.3d 1255, 1261 (Nev. 2005) (quoting Morris v. State, 913 P.2d 1264, 1267-68 (1996)). The evidence in this case was overwhelming. All three victims testified consistent with their prior statements and consistent with each other's testimony that Navas committed the acts alleged. We conclude that the brief reference to Navas' invocation of his right to counsel did not affect his substantial rights.

         Exh. 165, pp. 9-10.

         This court agrees that the police officer only briefly referenced Navas' invocation of his right to counsel. See exh. 123, pp. 36-53. Navas has not met his burden to show that the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). Accordingly, Navas has failed to demonstrate that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, or 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). Federal habeas relief is denied as to ground 3.

         Ground 4

         Navas alleges that insufficient evidence supported his conviction on the witness intimidation charge (ECF No. 64, pp. 47-53). This conviction stemmed from recorded prison phone calls and Ana's testimony that Navas called their mentally-challenged son Julito numerous times from prison and, knowing that Ana was listening to the call, urged Julito that Ana could not bring the girls to testify at trial because Ana would lose the house and be otherwise unable to support the four children. The prosecution played five of the phone calls for the jury. Exh. 123, pp. 67-72, 73-75, 78-79, 85-87; ECF No. 64, pp. 47-52.

         Respondents point out that Navas discharged his concurrent sentence for witness intimidation on November 24, 2008 (Exh. A at ECF No. 73-1; exh. 130). He did not dispatch his first federal petition for filing until almost two years later in October 2010 (ECF No. 1). Thus, Navas was not in custody on the witness intimidation conviction when he filed this petition, and this court lacks jurisdiction to consider ground 4. 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 492 (1989), Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999).

         Ground 5

         Navas argues that his Fifth, Sixth and Fourteenth Amendment rights to a speedy trial, due process, and effective assistance of counsel were violated because his trial occurred about three and ...


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.