United States District Court, D. Nevada
C. JONES, UNITED STATES DISTRICT JUDGE
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).
Procedural History and Background
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). 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.
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.
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.
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.
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.
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.
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
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).
Legal Standard under the Antiterrorism and Effective Death
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;
(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
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).
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.
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).
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
.... [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.
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.
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
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.
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'
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; 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'
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.
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.
Claims Rejected on Direct Appeal
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).
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).
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.
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.
165, pp. 9-10.
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
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.
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).
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