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Chavez v. Baker

United States District Court, D. Nevada

September 12, 2019

EDILFREDO CHAVEZ, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

         Introduction

         This case is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Edilfredo Chavez, a Nevada prisoner. This case is before the Court for adjudication of the merits of Chavez's remaining claims. The Court will deny Chavez's habeas petition, will deny him a certificate of appealability, and will direct the Clerk of the Court to enter judgment accordingly.

         Background

         On March 19, 2009, Chavez was convicted, and sentenced as follows, after a jury trial in Nevada's Eighth Judicial District Court, for crimes committed against his wife's young half-sister: Count 1, sexual assault with a minor under fourteen years of age, 420 months to life in prison; Court 3, sexual assault with a minor under fourteen years of age, 420 months to life in prison, consecutive to the sentence on Count 1; Count 4, sexual assault with a minor under fourteen years of age, 420 months to life in prison, concurrent with the sentence on Count 3; Count 11, statutory sexual seduction, 12 to 32 months in prison, concurrent with the sentence on Count 4; Count 13, statutory sexual seduction, 12 to 32 months in prison, concurrent with the sentence on Count 11; Count 15, statutory sexual seduction, 12 to 32 months in prison, concurrent with the sentence on Count 13; Count 16, lewdness with a child under the age of fourteen, 120 months to life in prison, concurrent with the sentence on Count 15; Count 19, lewdness with a child under the age of fourteen, 120 months to life in prison, concurrent with the sentence on Count 16; Count 20, use of a minor in producing pornography, 60 months to life in prison, concurrent with the sentence on Count 19; Count 21, use of a minor in producing pornography, 60 months to life in prison, concurrent with the sentence on Count 20; Count 22, possession of a visual presentation depicting sexual conduct of a child, 12 to 36 months in prison, concurrent with the sentence on Count 21; and Count 23, possession of a visual presentation depicting sexual conduct of a child, 12 to 36 months in prison, concurrent with the sentence on Count 22. See Judgment of Conviction (Jury Trial), Exhibit 39 (ECF No. 16-7). Chavez appealed, and the Nevada Supreme Court affirmed on May 12, 2011. See Order of Affirmance, Exhibit 45 (ECF No. 16-13).

         On March 5, 2012, Chavez filed a petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus, Exhibit 48 (ECF No. 16-16). The State filed a response to the petition on April 19, 2012. See State's Response to Defendant's Pro Per Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 51 (ECF No. 17). Counsel was appointed for Chavez, and, with counsel, he filed supplemental points and authorities in support of his habeas petition on October 2, 2012. See Supplemental Points and Authorities in Support of Post-Conviction Writ, Exhibit 57 (ECF No. 17-6). The State filed a response to the supplemental petition on December 12, 2012. See State's Response to Defendant's Supplemental Points and Authorities in Support of Post-Conviction Writ, Exhibit 58 (ECF No. 17-7). The state district court held an evidentiary hearing on December 19, 2012. See Reporter's Transcript of Evidentiary Hearing, Exhibit 59 (ECF No. 18). The state district court denied the petition in a written order entered on February 7, 2013. See Findings of Fact, Conclusions of Law and Order, Exhibit 61 (ECF No. 18-2). Chavez appealed, and the Nevada Supreme Court affirmed on June 24, 2014. See Order of Affirmance, Exhibit 71 (ECF No. 19-4).

         On July 17, 2014, this Court received Chavez's pro se federal petition for writ of habeas corpus. See Petition for A Writ of Habeas Corpus (ECF No. 4). The Court appointed counsel for Chavez. See Order entered July 31, 2014 (ECF No. 3). With counsel, Chavez filed a first amended habeas petition on December 23, 2014 (ECF No. 9). Chavez's amended petition included seven claims, designated Grounds 1, 2, 3A, 3B, 3C, 4A, and 4B.

         On February 19, 2015, the Respondents filed a motion to dismiss, contending that Chavez's amended petition included claims not exhausted in state court. ECF No. 20. On May 7, 2015, Chavez filed an opposition to the motion to dismiss and a motion for stay, requesting a stay in this case while he exhausted claims in state court. ECF No. 22, 23. On June 5, 2015, the Respondents filed a reply to the opposition to the motion to dismiss and an opposition to the motion to stay. ECF No. 26, 27. On June 12, 2015, Chavez filed a reply to the opposition to the motion for stay. ECF No. 28. On June 16, 2015, Chavez filed a surreply in opposition to the motion to dismiss. ECF No. 31. On June 23, 2015, the Respondents filed a response to the surreply. ECF No. 32. On July 27, 2015, the Court ruled on those motions, granting the motion to dismiss in part and denying it in part, and granting the motion for stay. ECF No. 33. The Court determined that certain of the claims in Chavez's amended petition were unexhausted in state court, and stayed the action pending Chavez's further state-court proceedings. Id. at 12.

         On September 14, 2015, Chavez initiated a second state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 74 (ECF No. 40-1). The State filed a response and motion to dismiss on October 16, 2015. See State's Response and Motion to Dismiss Defendant's Post-Conviction Petition for Writ of Habeas Corpus, Exhibit 77 (ECF No. 40-4). The state district court denied that petition in a written order filed on December 21, 2015, ruling that the petition was barred by the state-law statute of limitations (NRS 34.726(1)) and rule regarding successive petitions (NRS 34.810(2)). See Findings of Fact, Conclusions of Law and Order, Exhibit 80 (ECF No. 40-7). Chavez appealed, and the Nevada Court of Appeals affirmed on August 17, 2016. See Order of Affirmance, Exhibit 86 (ECF No. 40-13).

         On October 13, 2016, Chavez moved to lift the stay of this case, informing the Court that his further state-court proceedings had been completed. ECF No. 39. The Court granted that motion and lifted the stay on December 12, 2016. ECF No. 43.

         On April 11, 2017, the Respondents filed a motion to dismiss. ECF No. 46. Chavez filed an opposition to the motion to dismiss on June 9, 2017. ECF No. 47. The Respondents replied on July 7, 2017. ECF No. 48. On January 29, 2018, the Court granted in part and denied in part the Respondents' motion to dismiss. ECF No. 50. Specifically, grounds 4A and 4B of the amended petition were dismissed as barred by the procedural default doctrine, and, in all other respects, the motion to dismiss was denied. Id. at 7.

         The Respondents filed an answer to the remaining claims within the amended petition for writ of habeas corpus on April 30, 2018. ECF No. 51. Chavez filed a reply to the Respondents' answer on July 16, 2018. ECF No. 55. The Respondents filed a response to the reply on November 14, 2018. ECF No. 61.

         Discussion

         Standard of Review

         28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“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 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.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). 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.” Id. at 75 (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 409-10) (internal citation omitted).

         The Supreme Court has instructed that “[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 stated “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the 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)).

         Ground 1

         In Ground 1, Chavez claims that his federal constitutional rights were violated when his trial counsel failed to adequately advise him of the dangers of non-acceptance of the State's plea offer. First Amended Petition for Writ of Habeas Corpus (ECF No. 9) at 10. Chavez asserts that his counsel never explained to him that if he were convicted on all counts he could face a maximum sentence of 420 years to life and that a video depicting him and the victim engaging in sexual acts was enough evidence to convict him of two counts of lewdness with a child under the age of fourteen, two counts of use of a minor in producing pornography, and two counts of possession of visual presentation depicting sexual conduct of a child. Id. at 12. Chavez asserts that counsel failed to explain to him that the theory of defense-consent-was in fact an admission to other offenses charged in the information. Reply to Respondents' Answer (ECF 55) at 12. The Respondents argue that the State's offer was communicated to Chavez, and that because Chavez rejected the offer, his counsel was not deficient. Answer to Remaining Claims Within Amended Petition for Writ of Habeas Corpus (ECF No. 51) at 9.

         In the July 27, 2015, order, the Court found Ground 1 to be unexhausted in state court, so the Court stayed this action while Chavez exhausted this claim in state court. See Order filed July 27, 2015 (ECF No. 33) at 4, 12; see also Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petition who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”). Thereafter, Chavez filed a Post-Conviction Petition for Writ of Habeas Corpus, and the state district court denied the petition because it was procedurally barred and Chavez “fail[ed] to show good cause and prejudice.” Findings of Fact, Conclusions of Law and Order, Exhibit 80 (ECF No. 40-7) at 4; see Murray v. Carrier, 477 U.S. 478, 496 (1986) (holding that where a procedural default constitutes an adequate and independent state ground for denial of habeas corpus, the default may be excused only if “a constitutional violation has probably resulted in the conviction of one who is actually innocent, ” or if the prisoner demonstrates cause for the default and prejudice resulting from it). The Nevada Court of Appeals affirmed. See Order of Affirmance, Exhibit 86 (ECF No. 40-13). The Court lifted the stay in this action on December 12, 2016. See Order (ECF No. 43).

         Chavez argues that ineffective assistance of counsel in his first state habeas action was cause for his procedural default of this claim. See Opposition to Motion to Dismiss (ECF No. 47). To demonstrate cause for a procedural default, the petitioner must “show that some objective factor external to the defense impeded” his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488. “For cause to exist, the external impediment . . . must have prevented [the] petitioner from raising the claim.” See McCleskey v. Zant, 499 U.S. 467, 497 (1991). “To establish prejudice resulting from a procedural default, a habeas petitioner bears ‘the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (emphases in original), citing United States v. Frady, 456 U.S. 152, 170 (1982).

         In Martinez v. Ryan, the Supreme Court ruled that ineffective assistance of post-conviction counsel may serve as cause, to overcome the procedural default of a claim of ineffective assistance of trial counsel. 566 U.S. 1 (2012). In Martinez, the Supreme Court noted that it had previously held, in Coleman, that “an attorney's negligence in a postconviction proceeding does not establish cause” to excuse a procedural default. Id. at 1319. The Martinez Court, however, “qualif[ied] Coleman by recognizing a narrow exception: [i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 1315. The Court described “initial- review collateral proceedings” as “collateral proceedings which provide the first occasion to raise a claim of ineffective assistance of trial.” Id.

         In the January 29, 2018, order, the Court found that Chavez's argument that his counsel for his first state habeas action was ineffective was cause for his procedural default of this claim, raised the question of the merits of Ground 1, and that, as a result, the matter of the procedural default of this ground would be better addressed after the Respondents filed an answer, and Chavez a reply. See Order filed January 29, 2018 (ECF No. 50) at 5-6. The Court now determines that Chavez's post-conviction counsel was not ineffective for not asserting this claim, and that, at any rate, the claim is not substantial, and is without merit, because Chavez does not show that his trial counsel was deficient.

         In Strickland v. Washington, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1) that the attorney's “representation fell below an objective standard of reasonableness, ” and (2) that the attorney's deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The petitioner's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. In analyzing a claim of ineffective assistance of counsel under Strickland, a court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court need not consider the other. See Strickland, 466 U.S. at 697.

         A defendant's right to counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). When the ineffective assistance of counsel claim is based “[i]n the context of pleas[, ] a defendant must show the outcome of the plea process would have been different with competent advise.” Id. at 163. In other words, “prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.” Id. at 168.

         At the post-conviction evidentiary hearing, Chavez's trial counsel, Mr. Jeff Maningo (hereinafter Maningo), testified that “[t]here was a five-to-life offer” on a manufacturing child pornography charge that was “repeatedly” communicated to Chavez. Reporter's Transcript of Evidentiary Hearing, Exhibit 59 (ECF 18) at 5, 7; see also Guilty Plea Agreement, Exhibit 60 (ECF 18-1). Maningo testified that he “really wanted [Chavez] to accept the offer.” Reporter's Transcript of Evidentiary Hearing, Exhibit 59 (ECF 18) at 7. Maningo explained that

when you have a case where your client is actually on videotape having sexual relations with someone who's under age [sic], consensual or not, that's not a fun time in front of a jury. And we expressed that to him numerous times that this jury's gonna look at this video and they're, they're not gonna be happy with you. Whether they see that it's consensual or not, they're not gonna be pleased, it's not a good case for trial, this is an offer where you're gonna be exposed to a lot less time.

Id.

         Chavez testified at the post-conviction hearing that Maningo “just told [him] to sign five to life, that it would be a good deal.” Id. at 20. Maningo showed Chavez the guilty plea agreement, which was only written in English, a language that Chavez does not understand. Id. Chavez explained that he had already been in jail for two years at the time the offer was discussed, that Maningo “thought [he] probably would be out in about three years” and that because Maningo “couldn't guarantee [Chavez] that [he] would only do one more year in prison, ” Chavez elected to go to trial. Id. at 22. Chavez also explained that “an inmate told [him] that if [he] saw something that was five to life . . . not to sign it.” Id.

         Chavez argues that Maningo failed to adequately advise him of the dangers of not accepting the plea offer. However, Maningo's testimony at the post-conviction hearing refutes that argument. Maningo testified that he “repeatedly” communicated to Chavez that this was a good offer. Reporter's Transcript of Evidentiary Hearing, Exhibit 59 (ECF 18) at 7. Indeed, Maningo explained that he expressed to Chavez “over and over” that “this is an offer where you're gonna be exposed to a lot less time.” Id. Rather than taking the advice of his counsel, it appears that Chavez instead chose to listen to the advice of a fellow inmate. Id. at 22. Accordingly, because Maningo informed Chavez about the plea on a repeated basis and expressed the fact that his sentence would be much less if he accepted the offer, it cannot be determined that Maningo's “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 694; see also Missouri v. Frye, 566 U.S. 134, 145 (2012) (“[D]efense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”). Moreover, because Chavez refused at the time to consider the State's offer, he has failed to demonstrate a reasonable probability that he would have timely accepted the State's offer. See Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997) (finding no prejudice where there was no “reasonable probability that at the time of the offer” the petitioner would have accepted the government's plea offer).

         Because Chavez has not shown this claim of ineffective assistance of counsel regarding Maningo's failure to adequately inform him of the dangers of not accepting the plea offer to be substantial, he has not shown that his post-conviction counsel was ineffective for failing to raise it. And because Chavez's post-conviction counsel was not ineffective, there is no cause for Chavez's procedural default. See Martinez, 566 U.S. at 9 (“Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.”). Therefore, Ground 1 will be denied on the ground that it is procedurally defaulted.

         Ground 2

         In Ground 2, Chavez claims that his federal constitutional rights were violated based on the State's use of peremptory challenges in a racially discriminatory manner. First Amended Petition for Writ of Habeas Corpus (ECF No. 9) at 12. Specifically, Chavez argues that the State used three of its peremptory challenges to strike African-American jurors-Carl Jones, Willie Daniels, and Bass Davis-and that the prosecution's explanations for challenging these jurors were a pretext for discrimination. Id. at 17. The Respondents assert that the veniremen identified by Chavez were excused for race-neutral reasons. Answer to Remaining Claims Within Amended Petition for Writ of Habeas Corpus (ECF No. 51) at 10.

         This ground was raised in Chavez's direct appeal. (See Appellant's Opening Brief, Exhibit 42 (ECF No. 16-10) at 10 (“The State's exclusion of three African-Americans from the jury violated equal protection and due process guarantees of the United States and Nevada Constitutions.”). The Nevada Supreme Court held that “the record supports the district court's determination” that “the State's removal of the challenged jurors was not based on a systematic exclusion of any particular race.” Order of Affirmance, Exhibit 45 (ECF 16-13) at 2-3. The Court finds that the ruling of the Nevada Supreme Court was reasonable.

         The use of a peremptory challenge to remove a prospective juror because of race violates the federal constitution. See J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 129 (1994); Powers v. Ohio, 499 U.S. 400, 409 (1991). Under Batson v. Kentucky, 476 U.S. 79 (1986) and its progeny, consideration of a defendant's challenge to a peremptory strike involves a three-step analysis:

First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecution to present a race-neutral explanation for striking the juror in question. . . . Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination.

Rice v. Collins, 546 U.S. 333, 338 (2006).

         The trial court's determination regarding intentional discrimination is a question of fact. See Flowers v. Mississippi, 136 S.Ct. 2157, 2158 (2016); Hernandez v. New York, 500 U.S. 352, 364 (1991). Therefore, a habeas petitioner is entitled to relief on a Batson claim only if the state court's denial of the claim constituted “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); see Rice, 546 U.S. at 338. Thus, this Court can grant relief only “if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge.” Rice, 546 U.S. at 338. Moreover, under 28 U.S.C. § 2254(e)(1), “[s]tate-court factual findings . . . are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.'” Id. at 338-39. Although “[r]easonable minds reviewing the record might disagree about the prosecutor's credibility, . . . on habeas review that does not suffice to supersede the trial court's credibility determination.” Id. at 341-42.

         Carl Jones, a prospective juror at Chavez's trial, indicated that his “stepson is currently going through child custody issue[s] with his wife” and his wife “has accused him of molesting his daughter, ” who is four years old. Reporter's Transcript of Jury Trial, Exhibit 28, Part 1 (ECF No. 12-1) at 22, 25. The following colloquy occurred between the court and Jones:

THE COURT: And am I correct in my assumption that you really don't know any more about that situation than you've just heard through, I guess, reports from people, but you have no personal knowledge of any thing?
PROSPECTIVE JUROR JONES: No. personal knowledge. And it didn't develop or come out until after they moved from Las Vegas to Kansas City, which was two years ago.
THE COURT: Now, the behavior that is objected to, is that something that allegedly occurred in Las Vegas, or Kansas City?
PROSPECTIVE JUROR JONES: Well, from Kansas City, the story has it that it started here, but she never complained or said anything. And they intended to get married, move to Kansas City. After they got to Kansas City, then ...

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