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Contreras v. Baker

United States District Court, D. Nevada

November 13, 2019

RENEE BAKER, Defendant.



         Before the court for a decision on the merits is a petition for a writ of habeas corpus filed by Gustavo Contreras. ECF Nos. 3/36. For reasons that follow, the petition will be denied.

         I. BACKGROUND[1]

         On May 20, 2011, after a jury trial in the state district court for Clark County, Nevada, Contreras was convicted of battery by a prisoner and sentenced under the small habitual criminal statute to 60 to 150 months in the Nevada Department of Corrections (NDOC). The State presented evidence at trial that, on September 19, 2010, Contreras, at the time an inmate at Clark County Detention Center (CCDC), “sucker punched” another inmate, Christian Contreras, [2] then sliced his head with a knife or blade. The State also presented evidence that a third inmate, Matthew Romero, intervened in an effort to stop the altercation.

         On September 12, 2012, the Nevada Supreme Court affirmed Contreras's conviction and sentence. On April 12, 2013, Contreras filed a state post-conviction petition for a writ of habeas corpus. That petition was denied on June 26, 2013. Contreras appealed. The Nevada Supreme Court affirmed.

         Contreras initiated this proceeding by mailing his federal habeas petition on August 5, 2014. His petition contains ten separate grounds for habeas relief, all alleging ineffective assistance of counsel in his state criminal proceeding. On October 29, 2015, this court granted Contreras's request to stay these proceeding to allow him to exhaust state court remedies with respect to three claims - Grounds 8, 9, and 10.

         Representing that he had concluded state court proceedings, Contreras filed, on April 3, 2017, a motion to reopen federal habeas proceedings. This court granted the motion. Thereafter, respondents filed a motion to dismiss certain claims in Contreras's petition, arguing that they are procedurally defaulted. In addition, Contreras filed a motion for leave to file a supplement to his petition. In ruling on those motions, the court dismissed Grounds 6 and 7 at petitioner's request, dismissed Grounds 8, 9, and 10 as procedurally defaulted, and permitted petitioner to supplement Grounds 1 and 2.

         Grounds 1 through 5 are now before the court for a decision on the merits.


         This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), which imposes the following standard of review:

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.

28 U.S.C. § 2254(d).

         A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.

         The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "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 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] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9thCir. 2004), overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014); see also Miller-El, 537 U.S. at 340 ("[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2).").

         Because de novo review is more favorable to the petitioner, federal courts can deny writs of habeas corpus under § 2254 by engaging in de novo review rather than applying the deferential AEDPA standard. Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).


         All the remaining claims in Contreras's petition are premised on allegations that he was deprived of his constitutional right to effective assistance of counsel. To demonstrate ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, a convicted defendant must show 1) that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms in light of all the circumstances of the particular case; and 2) that it is reasonably probable that, but for counsel's errors or omissions, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984).

         Ground One

         In Ground One, Contreras alleges he was deprived of effective assistance of counsel because his trial counsel, Carl E. Arnold, failed to conduct an adequate investigation. According to Contreras, there were several witnesses who saw the entire altercation between him and Christian C. and would have testified that Contreras acted in self-defense. The evidence proffered to support this ground consists of three declarations from inmates who claim to have witnessed at least a portion of the fight - Steven D. Sutton, George Steele, and Jason Scott Spencer. ECF No. 36, p. 5.

         The state district ruled as follows in addressing Contreras's claim that counsel's investigation was inadequate:

In this case, Defendant Contreras provided the affidavits of two persons, Steven D. Sutton and George Steele, who claim to have witnessed the altercation in question, however, neither exculpate him. Mr. Sutton attests he witnessed two “Southern Gang” members attacking his neighbor, who, interestingly enough, he did not know was Mr. Contreras at the time. Whether such a statement is true, such does not exonerate Defendant from using a sharp object to slice the head of Christian Contreras, who, from all accounts, is not a gang member. Mr. Steele claims he witnessed Hispanics “jumping Inmate Gustavo Contreras Estrada.” He also notes Defendant “did nothen (sic) wrong he was just doing his time I've talked with him he's a cool person. . . . ” Again, such statements do not exculpate Defendant. In light of the testimony of both corrections officers and inmates presented at trial, it is difficult to perceive how further investigation of these witnesses would have altered the outcome of the case.
Defendant also proposes…his attorney “failed to attempt to locate” any favorable witnesses among the 98 inmates “filter[ing] through during the fight.” Such allegations, at best, are bare, and demonstrate a speculation Mr. Arnold might have found favorable witnesses if he had interviewed the 98 inmates. Succinctly put; Defendant Contreras fail [sic] to show evidence any of these inmates would have provided favorable testimony or there was a reasonable probability such would have changed the case's outcome.

ECF No. 14 at 10-11 (emphasis in original).

         Citing Strickland, the Nevada Supreme Court addressed the claim in the following manner:

[A]ppellant claimed that his trial counsel was ineffective for failing to investigate witnesses. In support of this claim, appellant included affidavits from two fellow inmates who asserted that they witnessed the altercation. Appellant failed to demonstrate that his trial counsel's performance was deficient. Appellant did not claim that counsel knew of these two potential witnesses prior to trial, but rather merely asserted that counsel could have interviewed the numerous inmates who potentially could have witnessed the incident. Under the circumstance of this case, appellant failed to demonstrate that such an exhaustive interviewing process that was without further guidance from appellant regarding specific potential witnesses would have been undertaken by objectively reasonably diligent counsel. See Strickland, 466 U.S. at 691 (stating “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances”).
Appellant also failed to demonstrate that he was prejudiced by the failure to discover these potential witnesses as their purported testimony was similar to the testimony already presented to the jury in appellant's defense, that appellant did not initiate the attack on the victim. The jury already rejected this defense at trial. Appellant failed to demonstrate a reasonable probability of a different outcome at trial had further testimony of a similar nature been discovered by counsel and presented at trial, particularly in light of the detention center employees' testimony that appellant attempted to distance himself from the injured party and blend in with the rest of the inmates when the employees arrived upon the incident scene. Therefore, the district court did not err in denying this claim.

ECF No. 14-8 at 3-4.

         This court questions the Nevada Supreme Court's conclusion that counsel did not have an obligation to investigate possible eyewitnesses to the altercation absent some guidance from his client. A defense attorney has a general duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. See Strickland, 466 U.S. at 691.

         In addition, this court also disagrees with the state supreme court's reasoning as to lack of prejudice - in particular, its disregard for the impact additional corroborating testimony might have had in showing that Contreras was not the initial aggressor. “[T]he testimony already presented to the jury in appellant's defense” to which the Nevada Supreme Court referred consisted of testimony from two witnesses (Romero and Contreras) that the jury had ample reason to doubt. Romero's testimony that Christian C. was the initial aggressor (ECF No. 47; p. 21, 23, 39, 58) and that Contreras did not have a blade or knife (Id.; p. 28, 49, 91) was contrary to his statements to corrections officers immediately after the fight (Id.; p. 106, 125). And Contreras had an obvious self-interest in claiming that he was not the initial aggressor. Given the dubious nature of this testimony, the Nevada Supreme Court was not justified in dismissing proffered corroborating testimony from other sources on the ground that it was duplicative or cumulative. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995) (attorney's failure to pursue corroborating evidence in support of defense may amount to constitutionally deficient performance).

         Even reviewed de novo, however, the claim lacks merit because the proffered declarations fail to establish a reasonable probability that the testimony of the declarants would have caused the jury to return a more favorable verdict.

         With respect to the declarations from Sutton and Steele, neither describes with any specificity how the fight began nor, for that matter, indicates that the declarant even saw how it began. The relevant portion of Sutton's brief declaration states as follows:

While an altercation was taken [sic] place in 7-B North Tower I witnessed two (2) Southerner Gang members attacking my neighbor who I didn't know at the time, ...

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