United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
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.
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,
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.
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.
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.
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.
1 through 5 are now before the court for a decision on the
STANDARDS OF REVIEW
action is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA), which imposes the following standard of
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.
28 U.S.C. § 2254(d).
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.
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
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, §
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).
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, 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.
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).
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.
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.
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).
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
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,