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Gonzalez v. Baker

United States District Court, D. Nevada

January 6, 2020

DAVID GONZALEZ, Petitioner,
v.
WARDEN BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 is before the Court for adjudication on the merits. As further explained below, the Court denies Petitioner David Gonzalez's habeas petition, denies him a certificate of appealability, and directs the Clerk of the Court to enter judgment accordingly.

         II. BACKGROUND

         Petitioner's convictions are the result of events that occurred in Clark County, Nevada on November 22, 2013. (ECF No. 15-7.) In its order affirming in part and reversing in part Petitioner's judgment of conviction, the Nevada Supreme Court described the crime, as revealed by the evidence at Petitioner's trial, as follows:

The victim testified that he met Gonzalez at a supermarket and agreed to sell him several gift cards. They left the supermarket, went to Gonzalez's car, and were approached by codefendant Sean Larson, to whom the victim voluntarily handed the gift cards so that Larson could check their value. The victim entered the backseat of the car, next to Trujillo. Gonzalez immediately began to drive, and the victim observed a handgun in Gonzalez's lap. The victim did not consent to being driven to another location. The door was locked when the victim tried to exit the car. Trujillo told the victim to remain calm and that they would not hurt him. Gonzalez drove to a secluded residential area. Larson told the victim, “You know what the fuck this is, ” and ordered the victim to get out of the car. When the victim refused, Larson opened the victim's car door, pulled the victim out by his shirt collar, and punched him in the face. Gonzalez stood next to Larson, brandishing the handgun. Larson, who still retained the gift cards, took the victim's cell phone and wallet from his pockets and threw the victim's personal property onto the backseat, where Trujillo gathered it. Larson and Gonzalez reentered the car and drove away.

(ECF No. 16-22 at 4.)

         On October 1, 2014, a jury found Petitioner guilty of conspiracy to commit robbery, first-degree kidnapping, and robbery with the use of a deadly weapon. (ECF No. 16-6.) Petitioner was sentenced to 24 to 60 months for conspiracy to commit robbery; 72 to 180 months for first-degree kidnapping, to run concurrent with the previous count; and 48 to 120 months for robbery plus a consecutive term of 24 to 60 months for the deadly weapon enhancement, to run concurrent with the previous count. (ECF No. 16-13.) Petitioner appealed, and the Nevada Supreme Court affirmed in part, reversed in part, and remanded the case. (ECF No. 16-22.) Specifically, the Nevada Supreme Court reversed Petitioner's sentence for first-degree kidnapping due to it being facially illegal and remanded the case to the state district court to resentence Petitioner accordingly. (Id. at 7.) Remittitur issued on June 7, 2016. (ECF No. 16-23.) An amended judgment of conviction was entered on August 18, 2016, amending Petitioner's sentence for first-degree kidnapping to five to 15 years. (ECF No. 16-33).

         Petitioner filed a state habeas corpus petition on July 19, 2016. (ECF No. 16-24.) Petitioner filed a second-state habeas corpus petition on August 8, 2016. (ECF No. 16-29.) The state district court denied Petitioner's initial state habeas petition on September 14, 2016. (ECF No. 17-8.) The state district court thereafter denied Petitioner's second-state habeas corpus petition on November 28, 2016, and pursuant to an order of the Nevada Supreme Court, entered a written order denying the petition on April 27, 2017. (ECF No. 18-5.) Petitioner appealed the denials, and the Nevada Supreme Court consolidated the appeals and affirmed. (ECF Nos. 18-13, 18-16.) Remittitur issued on January 11, 2018. (ECF No. 18-17.)

         Petitioner moved for modification of his sentence on April 17, 2017. (ECF No. 18-2.) The state district court denied the motion on June 2, 2017. (ECF No. 18-11.) The Nevada Court of Appeals affirmed on April 24, 2018, and issued a remitter on May 22, 2018. (ECF Nos. 18-19, 18-20.)

         Petitioner dispatched his federal habeas corpus petition on February 6, 2018. (ECF No. 9.) Petitioner filed a memorandum in support of his petition on April 23, 2018. (ECF No. 10.) Respondents answered the petition on July 23, 2018. (ECF No. 14.) Petitioner replied on August 8, 2018. (ECF No. 19.) On January 2, 2020, Petitioner requested a status check of his petition. (ECF No. 23.)

         Petitioner asserts the following violations of his federal constitutional rights:

1. His trial counsel was ineffective for failing to object to an erroneous jury instruction regarding first-degree kidnapping.
2. The state district court failed to instruct the jury on the correct legal standard for dual convictions of first-degree kidnapping and robbery.
3. His trial counsel was ineffective for failing to move to suppress evidence of the alleged gun.

(ECF No. 9.)

         III. LEGAL STANDARD

         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 ...

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