United States District Court, D. Nevada
RENE F. FERNANDEZ, Petitioner
JAMES GREG COX, et al., Respondents.
M. Navarro, Judge
March 6, 2017, this court denied Rene F. Fernandez's
amended petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 and denied a certificate of appealability.
ECF No. 53. Judgment was entered in favor of the Respondents
and against Fernandez on March 7, 2017. ECF NO. 54. Fernandez
filed a notice of appeal and a motion for request for a
certificate of appealability on April 5, 2017, and April 10,
2017, respectively. ECF No. 57, 59. This court issued an
order on April 12, 2017, indicating that it would grant
relief from its previous judgment (ECF No. 54) pursuant to
Federal Rules of Civil Procedure 60(b) and 62.1 if the court
of appeals remanded the case. ECF No. 61. This order was
issued pursuant to Nasby v. McDaniel, 853 F.3d 1049
(9th Cir. 2017). Id.
August 8, 2017, the United States Court of Appeals for the
Ninth Circuit issued an order remanding this case “for
the limited purpose of enabling the district court to
consider whether [Fernandez] is entitled to relief from the
judgment.” ECF No. 64. This court reopened this action
and granted, in part, a motion for relief from the judgment
on November 13, 2017. ECF No. 69. The United States Court of
Appeals for the Ninth Circuit dismissed Fernandez's
appeal for lack of jurisdiction and filed a formal mandate on
April 26, 2018, and May 18, 2018, respectively. ECF No. 71,
72. Accordingly, Fernandez's petition is again before
this court for the limited purpose of considering the trial
transcripts that were filed after the issuance of the
judgment in order to determine whether that judgment should
be amended. See Ex. 1A, ECF No. 68-1; Ex. 1B, ECF
No. 68-2; Ex. 1C, ECF No. 68-3; Ex. 2, ECF No. 68-4; Ex. 3,
ECF No. 68-5; see also Nasby, 853 F.3d at 1052
(holding that “[t]he district court [erred in]
fail[ing] to examine important parts of the record of the
state court proceedings in its adjudication of
[petitioner]'s claims” and, instead, “simply
rel[ying] on the facts as described in the Nevada Supreme
Court's opinion denying [petitioner] relief”).
4, 2007, State Trooper Matt Moonin, stopped a black Chevy
Blazer driven by Fernandez because the vehicle's trailer
hitch was blocking the license plate. Ex. 1B, ECF No. 68-2 at
5, 7, 9-10. Rodney Sierz was the passenger and the registered
owner of the Chevy Blazer. Id. at 11, 16. Trooper
Moonin checked the records for both Fernandez and Sierz and
found that both men had criminal histories regarding
narcotics. Id. at 11, 14-15. Fernandez and Sierz
gave vague and inconsistent answers to Trooper Moonin's
questions. Id. at 38, 44-45.
Moonin called Detective Dale Jaeger, who arrived on scene
with a narcotic-detecting dog. Id. 18, 74. Trooper
Moonin obtained written consent from both Fernandez and Sierz
to search the Chevy Blazer. Id. at 16-17. The dog
“scratch[ed] at the right rear of the speaker box
insider the rear cargo area of the truck.” Id.
at 19, 78-79. The speaker box was anchored to the floor, and
there was a “large fabricated box which was about the
same size as the bottom area of this speaker . . . attached
to the undercarriage of the vehicle.” Id. at
20. The compartment contained 4, 720 grams of cocaine.
Id. at 26-28, 86. Trooper Moonin also found a folded
dollar bill in the driver's door that contained 2.2 grams
of cocaine. Id. at 28-29, 90.
he was read his Miranda rights, Fernandez declined
to answer any questions. Id. at 35-36. Sierz was
also read his Miranda rights and did answer some
questions posed by Tooper Moonin. Id. at 36. Sierz
stated that that he knew the secret compartment was in the
vehicle, he knew there was controlled substances in the
vehicle, and he and Fernandez traveled to get the cocaine
together. Id. at 37. Later, Sierz agreed to plead
guilty in exchange for his testimony against
Fernandez. Id. at 148-149.
was convicted of conspiracy to violate the controlled
substances act, trafficking in a controlled substance, and
transport of a controlled substance. Ex. 2, ECF No. 31-2. The
Nevada Supreme Court affirmed Fernandez's conviction. Ex.
5, ECF No. 31-5. Fernandez filed a post-conviction habeas
petition in state district court. Ex. 6, ECF No. 31-6;
see also Ex. 6A, ECF No. 31-7 (motion for an
additional ground to be added to his petition). The petition
was denied, and the Nevada Supreme Court affirmed. Ex. 8, ECF
No. 31-9; Ex. 9, ECF No. 31-10. Fernandez filed a petition
for a writ of habeas corpus and an amended petition in this
court. ECF No. 7, 21. The amended petition asserted the
following grounds for relief:
1. Fernandez's trial counsel failed to object to the
prosecution voluntarily dismissing the charges against him.
2. Fernandez's trial counsel failed to object to the
sufficiency of the notice that grand-jury proceedings against
Fernandez had commenced.
3. Fernandez's trial counsel and appellate counsel, who
were one in the same, operated under a conflict of interest.
4. Fernandez's trial counsel failed to submit to the jury
the question whether Sierz was an accomplice because, under
state law, an accomplice's testimony must be
5. Fernandez's trial counsel did not discuss discovery
with him, did not discuss defense strategies with him, and
did not cross-examine Sierz whether he was a paid informant
for the federal Drug Enforcement Agency.
7. Fernandez's trial counsel failed to raise a claim that
the Double Jeopardy Clause was violated.
8. Fernandez's trial counsel failed to cross-examine the
prosecution's drug-testing experts.
ECF No. 21.
Standard of Review
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
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.
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
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
2254(d) generally applies to unexplained as well as reasoned
state-court decisions. “When a federal claim has been
presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.”
Harrington, 562 U.S. at 99. When the state court has
denied a federal constitutional claim on the merits without
explanation, the federal habeas court
must determine what arguments or theories supported or . . .
could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the ...