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Fernandez v. Cox

United States District Court, D. Nevada

September 20, 2019

JAMES GREG COX, et al., Respondents.


          Gloria M. Navarro, Judge

         On 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.

         On 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”).


         On June 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.[1] Id. at 38, 44-45.

         Trooper 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.

         After 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.[2] Id. at 148-149.

         Fernandez 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 corroborated.
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.[3]
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.


         A. 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)).

         Section 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 ...

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