Chavez v. LeGrand

— 1 — — 2 — — 3 — — 4 — — 5 — UNITED STATES DISTRICT COURT — 6 — DISTRICT OF NEVADA — 7 — * * * — 8 — EDILFREDO CHAVEZ, Case No. 3:14-CV-00373-RCJ-CBC — 9 — Petitioner, ORDER 10 v. — 11 — RENEE BAKER, et al., — 12 — Respondents. — 13 — — 14 — 15 Introduction 16 This case is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 , by 17 Edilfredo Chavez, a Nevada prisoner. This case is before the Court for adjudication of the merits 18 of Chavez’s remaining claims. The Court will deny Chavez’s habeas petition, will deny him a 19 certificate of appealability, and will direct the Clerk of the Court to enter judgment accordingly. 20 Background 21 On March 19, 2009, Chavez was convicted, and sentenced as follows, after a jury trial in 22 Nevada’s Eighth Judicial District Court, for crimes committed against his wife’s young half23 sister: Count 1, sexual assault with a minor under fourteen years of age, 420 months to life in 24 prison; Court 3, sexual assault with a minor under fourteen years of age, 420 months to life in 25 prison, consecutive to the sentence on Count 1; Count 4, sexual assault with a minor under 26 fourteen years of age, 420 months to life in prison, concurrent with the sentence on Count 3; 27 Count 11, statutory sexual seduction, 12 to 32 months in prison, concurrent with the sentence on 1 sentence on Count 11; Count 15, statutory sexual seduction, 12 to 32 months in prison, 2 concurrent with the sentence on Count 13; Count 16, lewdness with a child under the age of 3 fourteen, 120 months to life in prison, concurrent with the sentence on Count 15; Count 19, 4 lewdness with a child under the age of fourteen, 120 months to life in prison, concurrent with the 5 sentence on Count 16; Count 20, use of a minor in producing pornography, 60 months to life in 6 prison, concurrent with the sentence on Count 19; Count 21, use of a minor in producing 7 pornography, 60 months to life in prison, concurrent with the sentence on Count 20; Count 22, 8 possession of a visual presentation depicting sexual conduct of a child, 12 to 36 months in 9 prison, concurrent with the sentence on Count 21; and Count 23, possession of a visual 10 presentation depicting sexual conduct of a child, 12 to 36 months in prison, concurrent with the 11 sentence on Count 22. See Judgment of Conviction (Jury Trial), Exhibit 39 (ECF No. 16-7). 12 Chavez appealed, and the Nevada Supreme Court affirmed on May 12, 2011. See Order of 13 Affirmance, Exhibit 45 (ECF No. 16-13). 14 On March 5, 2012, Chavez filed a petition for writ of habeas corpus in the state district 15 court. See Petition for Writ of Habeas Corpus, Exhibit 48 (ECF No. 16-16). The State filed a 16 response to the petition on April 19, 2012. See State’s Response to Defendant’s Pro Per Petition 17 for Writ of Habeas Corpus (Post-Conviction), Exhibit 51 (ECF No. 17). Counsel was appointed 18 for Chavez, and, with counsel, he filed supplemental points and authorities in support of his 19 habeas petition on October 2, 2012. See Supplemental Points and Authorities in Support of Post20 Conviction Writ, Exhibit 57 (ECF No. 17-6). The State filed a response to the supplemental 21 petition on December 12, 2012. See State’s Response to Defendant’s Supplemental Points and 22 Authorities in Support of Post-Conviction Writ, Exhibit 58 (ECF No. 17-7). The state district 23 court held an evidentiary hearing on December 19, 2012. See Reporter’s Transcript of 24 Evidentiary Hearing, Exhibit 59 (ECF No. 18). The state district court denied the petition in a 25 written order entered on February 7, 2013. See Findings of Fact, Conclusions of Law and Order, 26 Exhibit 61 (ECF No. 18-2). Chavez appealed, and the Nevada Supreme Court affirmed on June 27 24, 2014. See Order of Affirmance, Exhibit 71 (ECF No. 19-4). 1 On July 17, 2014, this Court received Chavez’s pro se federal petition for writ of habeas 2 corpus. See Petition for A Writ of Habeas Corpus (ECF No. 4). The Court appointed counsel for 3 Chavez. See Order entered July 31, 2014 (ECF No. 3). With counsel, Chavez filed a first 4 amended habeas petition on December 23, 2014 (ECF No. 9). Chavez’s amended petition 5 included seven claims, designated Grounds 1, 2, 3A, 3B, 3C, 4A, and 4B. 6 On February 19, 2015, the Respondents filed a motion to dismiss, contending that 7 Chavez’s amended petition included claims not exhausted in state court. ECF No. 20. On May 7, 8 2015, Chavez filed an opposition to the motion to dismiss and a motion for stay, requesting a 9 stay in this case while he exhausted claims in state court. ECF No. 22, 23. On June 5, 2015, the 10 Respondents filed a reply to the opposition to the motion to dismiss and an opposition to the 11 motion to stay. ECF No. 26, 27. On June 12, 2015, Chavez filed a reply to the opposition to the 12 motion for stay. ECF No. 28. On June 16, 2015, Chavez filed a surreply in opposition to the 13 motion to dismiss. ECF No. 31. On June 23, 2015, the Respondents filed a response to the 14 surreply. ECF No. 32. On July 27, 2015, the Court ruled on those motions, granting the motion 15 to dismiss in part and denying it in part, and granting the motion for stay. ECF No. 33. The Court 16 determined that certain of the claims in Chavez’s amended petition were unexhausted in state 17 court, and stayed the action pending Chavez’s further state-court proceedings. Id. at 12 . 18 On September 14, 2015, Chavez initiated a second state habeas action. See Petition for 19 Writ of Habeas Corpus (Post-Conviction), Exhibit 74 (ECF No. 40-1). The State filed a response 20 and motion to dismiss on October 16, 2015. See State’s Response and Motion to Dismiss 21 Defendant’s Post-Conviction Petition for Writ of Habeas Corpus, Exhibit 77 (ECF No. 40-4). 22 The state district court denied that petition in a written order filed on December 21, 2015, ruling 23 that the petition was barred by the state-law statute of limitations (NRS 34.726(1)) and rule 24 regarding successive petitions (NRS 34.810(2)). See Findings of Fact, Conclusions of Law and 25 Order, Exhibit 80 (ECF No. 40-7). Chavez appealed, and the Nevada Court of Appeals affirmed 26 on August 17, 2016. See Order of Affirmance, Exhibit 86 (ECF No. 40-13). 27 /// 1 On October 13, 2016, Chavez moved to lift the stay of this case, informing the Court that 2 his further state-court proceedings had been completed. ECF No. 39. The Court granted that 3 motion and lifted the stay on December 12, 2016. ECF No. 43. 4 On April 11, 2017, the Respondents filed a motion to dismiss. ECF No. 46. Chavez filed 5 an opposition to the motion to dismiss on June 9, 2017. ECF No. 47. The Respondents replied on 6 July 7, 2017. ECF No. 48. On January 29, 2018, the Court granted in part and denied in part the 7 Respondents’ motion to dismiss. ECF No. 50. Specifically, grounds 4A and 4B of the amended 8 petition were dismissed as barred by the procedural default doctrine, and, in all other respects, 9 the motion to dismiss was denied. Id. at 7 . 10 The Respondents filed an answer to the remaining claims within the amended petition for 11 writ of habeas corpus on April 30, 2018. ECF No. 51. Chavez filed a reply to the Respondents’ 12 answer on July 16, 2018. ECF No. 55. The Respondents filed a response to the reply on 13 November 14, 2018. ECF No. 61. 14 Discussion 15 Standard of Review — 16 — 28 U.S.C. § 2254 (d) sets forth the standard of review generally applicable in habeas — 17 — corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): 18 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 — 19 — was adjudicated on the merits in State court proceedings unless the adjudication of 20 the claim -- 21 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 22 Supreme Court of the United States; or — 23 — (2) resulted in a decision that was based on an unreasonable determination of 24 the facts in light of the evidence presented in the State court proceeding. 25 A state court decision is contrary to clearly established Supreme Court precedent, within the 26 meaning of 28 U.S.C. § 2254 , “if the state court applies a rule that contradicts the governing 27 law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that — 1 — 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing 2 Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application 3 of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254 (d) “if 4 the state court identifies the correct governing legal principle from [the Supreme] Court’s 5 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75 6 (quoting Williams, 529 U.S. at 413 ). “The ‘unreasonable application’ clause requires the state 7 court decision to be more than incorrect or erroneous. The state court’s application of clearly 8 established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10 ) 9 (internal citation omitted). 10 The Supreme Court has instructed that “[a] state court’s determination that a claim lacks 11 merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the 12 correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing 13 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a 14 strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. 15 at 102 (citing Lockyer, 538 U.S. at 75 ); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 16 (describing the standard as a “difficult to meet” and “highly deferential standard for evaluating 17 state-court rulings, which demands that state-court decisions be given the benefit of the doubt” 18 (internal quotation marks and citations omitted)). 19 Ground 1 20 In Ground 1, Chavez claims that his federal constitutional rights were violated when his 21 trial counsel failed to adequately advise him of the dangers of non-acceptance of the State’s plea 22 offer. First Amended Petition for Writ of Habeas Corpus (ECF No. 9) at 10. Chavez asserts that 23 his counsel never explained to him that if he were convicted on all counts he could face a 24 maximum sentence of 420 years to life and that a video depicting him and the victim engaging in 25 sexual acts was enough evidence to convict him of two counts of lewdness with a child under the 26 age of fourteen, two counts of use of a minor in producing pornography, and two counts of 27 possession of visual presentation depicting sexual conduct of a child. Id. at 12. Chavez asserts 1 admission to other offenses charged in the information. Reply to Respondents’ Answer (ECF 55) 2 at 12. The Respondents argue that the State’s offer was communicated to Chavez, and that 3 because Chavez rejected the offer, his counsel was not deficient. Answer to Remaining Claims 4 Within Amended Petition for Writ of Habeas Corpus (ECF No. 51) at 9. 5 In the July 27, 2015, order, the Court found Ground 1 to be unexhausted in state court, so 6 the Court stayed this action while Chavez exhausted this claim in state court. See Order filed July 7 27, 2015 (ECF No. 33) at 4, 12; see also Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) 8 (“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petition 9 who has failed to meet the State’s procedural requirements for presenting his federal claims has 10 deprived the state courts of an opportunity to address those claims in the first instance.”). 11 Thereafter, Chavez filed a Post-Conviction Petition for Writ of Habeas Corpus, and the state 12 district court denied the petition because it was procedurally barred and Chavez “fail[ed] to show 13 good cause and prejudice.” Findings of Fact, Conclusions of Law and Order, Exhibit 80 (ECF 14 No. 40-7) at 4; see Murray v. Carrier, 477 U.S. 478, 496 (1986) (holding that where a procedural 15 default constitutes an adequate and independent state ground for denial of habeas corpus, the 16 default may be excused only if “a constitutional violation has probably resulted in the conviction 17 of one who is actually innocent,” or if the prisoner demonstrates cause for the default and 18 prejudice resulting from it). The Nevada Court of Appeals affirmed. See Order of Affirmance, 19 Exhibit 86 (ECF No. 40-13). The Court lifted the stay in this action on December 12, 2016. See 20 Order (ECF No. 43). 21 Chavez argues that ineffective assistance of counsel in his first state habeas action was 22 cause for his procedural default of this claim. See Opposition to Motion to Dismiss (ECF No. 23 47). To demonstrate cause for a procedural default, the petitioner must “show that some 24 objective factor external to the defense impeded” his efforts to comply with the state procedural 25 rule. Murray, 477 U.S. at 488 . “For cause to exist, the external impediment . . . must have 26 prevented [the] petitioner from raising the claim.” See McCleskey v. Zant, 499 U.S. 467 , 497 27 (1991). “To establish prejudice resulting from a procedural default, a habeas petitioner bears ‘the 1 prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire 2 [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th 3 Cir. 1989) (emphases in original), citing United States v. Frady, 456 U.S. 152, 170 (1982). 4 In Martinez v. Ryan, the Supreme Court ruled that ineffective assistance of post5 conviction counsel may serve as cause, to overcome the procedural default of a claim of 6 ineffective assistance of trial counsel. 566 U.S. 1 (2012). In Martinez, the Supreme Court noted 7 that it had previously held, in Coleman, that “an attorney’s negligence in a postconviction 8 proceeding does not establish cause” to excuse a procedural default. Id. at 1319. The Martinez 9 Court, however, “qualif[ied] Coleman by recognizing a narrow exception: [i]nadequate 10 assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s 11 procedural default of a claim of ineffective assistance at trial.” Id. at 1315. The Court described 12 “initial- review collateral proceedings” as “collateral proceedings which provide the first 13 occasion to raise a claim of ineffective assistance of trial.” Id. 14 In the January 29, 2018, order, the Court found that Chavez’s argument that his counsel 15 for his first state habeas action was ineffective was cause for his procedural default of this claim, 16 raised the question of the merits of Ground 1, and that, as a result, the matter of the procedural 17 default of this ground would be better addressed after the Respondents filed an answer, and 18 Chavez a reply. See Order filed January 29, 2018 (ECF No. 50) at 5-6. The Court now 19 determines that Chavez’s post-conviction counsel was not ineffective for not asserting this claim, 20 and that, at any rate, the claim is not substantial, and is without merit, because Chavez does not 21 show that his trial counsel was deficient. 22 In Strickland v. Washington, the Supreme Court propounded a two-prong test for analysis 23 of claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1) that the 24 attorney’s “representation fell below an objective standard of reasonableness,” and (2) that the 25 attorney’s deficient performance prejudiced the defendant such that “there is a reasonable 26 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 27 been different.” 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective 1 wide range of reasonable professional assistance.” Id. at 689 . The petitioner’s burden is to show 2 “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed 3 the defendant by the Sixth Amendment.” Id. at 687 . And, to establish prejudice under Strickland, 4 it is not enough for the habeas petitioner “to show that the errors had some conceivable effect on 5 the outcome of the proceeding.” Id. at 693 . In analyzing a claim of ineffective assistance of 6 counsel under Strickland, a court may first consider either the question of deficient performance 7 or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court 8 need not consider the other. See Strickland, 466 U.S. at 697 . 9 A defendant’s right to counsel “extends to the plea-bargaining process.” Lafler v. Cooper, — 10 — 566 U.S. 156, 162 (2012). When the ineffective assistance of counsel claim is based “[i]n the 11 context of pleas[,] a defendant must show the outcome of the plea process would have been 12 different with competent advise.” Id. at 163 . In other words, “prejudice can be shown if loss of 13 the plea opportunity led to a trial resulting in a conviction on more serious charges or the 14 imposition of a more severe sentence.” Id. at 168 . 15 At the post-conviction evidentiary hearing, Chavez’s trial counsel, Mr. Jeff Maningo 16 (hereinafter Maningo), testified that “[t]here was a five-to-life offer” on a manufacturing child 17 pornography charge that was “repeatedly” communicated to Chavez. Reporter’s Transcript of 18 Evidentiary Hearing, Exhibit 59 (ECF 18) at 5, 7; see also Guilty Plea Agreement, Exhibit 60 19 (ECF 18-1). Maningo testified that he “really wanted [Chavez] to accept the offer.” Reporter’s 20 Transcript of Evidentiary Hearing, Exhibit 59 (ECF 18) at 7. Maningo explained that — 21 — when you have a case where your client is actually on videotape having sexual 22 relations with someone who’s under age [sic], consensual or not, that’s not a fun time in front of a jury. And we expressed that to him numerous times that this jury’s 23 gonna look at this video and they’re, they’re not gonna be happy with you. Whether they see that it’s consensual or not, they’re not gonna be pleased, it’s not a good 24 case for trial, this is an offer where you’re gonna be exposed to a lot less time. — 25 — Id. 26 Chavez testified at the post-conviction hearing that Maningo “just told [him] to sign five 27 to life, that it would be a good deal.” Id. at 20. Maningo showed Chavez the guilty plea 1 Chavez explained that he had already been in jail for two years at the time the offer was 2 discussed, that Maningo “thought [he] probably would be out in about three years” and that 3 because Maningo “couldn’t guarantee [Chavez] that [he] would only do one more year in 4 prison,” Chavez elected to go to trial. Id. at 22. Chavez also explained that “an inmate told [him] 5 that if [he] saw something that was five to life . . . not to sign it.” Id. 6 Chavez argues that Maningo failed to adequately advise him of the dangers of not 7 accepting the plea offer. However, Maningo’s testimony at the post-conviction hearing refutes 8 that argument. Maningo testified that he “repeatedly” communicated to Chavez that this was a 9 good offer. Reporter’s Transcript of Evidentiary Hearing, Exhibit 59 (ECF 18) at 7. Indeed, 10 Maningo explained that he expressed to Chavez “over and over” that “this is an offer where 11 you’re gonna be exposed to a lot less time.” Id. Rather than taking the advice of his counsel, it 12 appears that Chavez instead chose to listen to the advice of a fellow inmate. Id. at 22. 13 Accordingly, because Maningo informed Chavez about the plea on a repeated basis and 14 expressed the fact that his sentence would be much less if he accepted the offer, it cannot be 15 determined that Maningo’s “representation fell below an objective standard of reasonableness.” 16 Strickland, 466 U.S. at 694 ; see also Missouri v. Frye, 566 U.S. 134, 145 (2012) (“[D]efense 17 counsel has the duty to communicate formal offers from the prosecution to accept a plea on 18 terms and conditions that may be favorable to the accused.”). Moreover, because Chavez refused 19 at the time to consider the State’s offer, he has failed to demonstrate a reasonable probability that 20 he would have timely accepted the State’s offer. See Jones v. Wood, 114 F.3d 1002, 1012 (9th 21 Cir. 1997) (finding no prejudice where there was no “reasonable probability that at the time of 22 the offer” the petitioner would have accepted the government’s plea offer). 23 Because Chavez has not shown this claim of ineffective assistance of counsel regarding 24 Maningo’s failure to adequately inform him of the dangers of not accepting the plea offer to be 25 substantial, he has not shown that his post-conviction counsel was ineffective for failing to raise 26 it. And because Chavez’s post-conviction counsel was not ineffective, there is no cause for 27 Chavez’s procedural default. See Martinez, 566 U.S. at 9 (“Inadequate assistance of counsel at 1 claim of ineffective assistance at trial.”). Therefore, Ground 1 will be denied on the ground that it 2 is procedurally defaulted. 3 Ground 2 4 In Ground 2, Chavez claims that his federal constitutional rights were violated based on 5 the State’s use of peremptory challenges in a racially discriminatory manner. First Amended 6 Petition for Writ of Habeas Corpus (ECF No. 9) at 12. Specifically, Chavez argues that the State 7 used three of its peremptory challenges to strike African-American jurors—Carl Jones, Willie 8 Daniels, and Bass Davis—and that the prosecution’s explanations for challenging these jurors 9 were a pretext for discrimination. Id. at 17 . The Respondents assert that the veniremen identified 10 by Chavez were excused for race-neutral reasons. Answer to Remaining Claims Within 11 Amended Petition for Writ of Habeas Corpus (ECF No. 51) at 10. 12 This ground was raised in Chavez’s direct appeal. (See Appellant’s Opening Brief, 13 Exhibit 42 (ECF No. 16-10) at 10 (“The State’s exclusion of three African-Americans from the 14 jury violated equal protection and due process guarantees of the United States and Nevada 15 Constitutions.”). The Nevada Supreme Court held that “the record supports the district court’s 16 determination” that “the State’s removal of the challenged jurors was not based on a systematic 17 exclusion of any particular race.” Order of Affirmance, Exhibit 45 (ECF 16-13) at 2-3. The Court 18 finds that the ruling of the Nevada Supreme Court was reasonable. 19 The use of a peremptory challenge to remove a prospective juror because of race violates 20 the federal constitution. See J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 129 (1994); Powers v. 21 Ohio, 499 U.S. 400, 409 (1991). Under Batson v. Kentucky, 476 U.S. 79 (1986) and its progeny, 22 consideration of a defendant’s challenge to a peremptory strike involves a three-step analysis: — 23 — First, the trial court must determine whether the defendant has made a prima facie 24 showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecution to present a 25 race-neutral explanation for striking the juror in question. . . . Third, the court must then determine whether the defendant has carried his burden of proving purposeful 26 discrimination. 27 Rice v. Collins, 546 U.S. 333, 338 (2006). 1 The trial court’s determination regarding intentional discrimination is a question of fact. 2 See Flowers v. Mississippi, 136 S.Ct. 2157, 2158 (2016); Hernandez v. New York, 500 U.S. 352 , 3 364 (1991). Therefore, a habeas petitioner is entitled to relief on a Batson claim only if the state 4 court’s denial of the claim constituted “an unreasonable determination of the facts in light of the 5 evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d)(2); see Rice, 546 U.S. at 6 338. Thus, this Court can grant relief only “if it was unreasonable to credit the prosecutor’s race7 neutral explanations for the Batson challenge.” Rice, 546 U.S. at 338 . Moreover, under 28 U.S.C. 8 § 2254(e)(1), “[s]tate-court factual findings . . . are presumed correct; the petitioner has the 9 burden of rebutting the presumption by ‘clear and convincing evidence.’” Id. at 338-39. 10 Although “[r]easonable minds reviewing the record might disagree about the prosecutor’s 11 credibility, . . . on habeas review that does not suffice to supersede the trial court’s credibility 12 determination.” Id. at 341-42. 13 Carl Jones, a prospective juror at Chavez’s trial, indicated that his “stepson is currently 14 going through child custody issue[s] with his wife” and his wife “has accused him of molesting 15 his daughter,” who is four years old. Reporter’s Transcript of Jury Trial, Exhibit 28, Part 1 (ECF 16 No. 12-1) at 22, 25. The following colloquy occurred between the court and Jones: — 17 — THE COURT: And am I correct in my assumption that you really don’t 18 know any more about that situation than you’ve just heard through, I guess, reports from people, but you have no personal knowledge of any thing? — 19 — PROSPECTIVE JUROR JONES: No personal knowledge. And it didn’t 20 develop or come out until after they moved from Las Vegas to Kansas City, which was two years ago. — 21 — 22 THE COURT: Now, the behavior that is objected to, is that something that allegedly occurred in Las Vegas, or Kansas City? — 23 — PROSPECTIVE JUROR JONES: Well, from Kansas City, the story has it 24 that it started here, but she never complained or said anything. And they intended to get married, move to Kansas City. After they got to Kansas City, then she kicked — 25 — him out and filed the charges against him. — 26 — THE COURT: So they were never married? — 27 — THE COURT: And answer this yes or no, if you would. Do you have sense — 1 — as to whether or not your stepson is being treated fairly. — 2 — PROSPECTIVE JUROR JONES: I know he’s not. — 3 — THE COURT: Now, given that, do you think that that sort of concern might 4 carry over to this trial? — 5 — PROSPECTIVE JUROR JONES: I wouldn’t think so. — 6 — THE COURT: Do you think you can maintain the separateness of the 7 alleged events? 8 PROSPECTIVE JUROR JONES: Yes. — 9 — . . . — 10 — MS. CLARKE: Thank you. Sir, despite the situation that you have with your 11 stepson, if you were the State, you would still feel comfortable having someone like yourself on this jury? — 12 — PROSPECTIVE JUROR JONES: Yes. — 13 — 14 MS. CLARKE: Now, you said that she filed charges. She filed charges here in Las Vegas? — 15 — PROSPECTIVE JUROR JONES: No, no. — 16 — MS. CLARKE: so even though the behavior was supposed to have started — 17 — here, it’s just being dealt with back there in Kansas City? — 18 — PROSPECTIVE JUROR JONES: Correct. — 19 — MS. CLARKE: And other than I think what the Judge asked you your 20 involvement in it, were you present at least in the four-year-old’s life when the alleged acts were to have occurred? — 21 — 22 PROSPECTIVE JUROR JONES: Only when she was one, one-and-a-half, almost two. That was about the time that they packed up and left. Then they had 23 the twins after they reached Kansas City. — 24 — MS. CLARKE: What is it about the way your stepson is being treated that 25 you think is unfair? 26 PROSPECTIVE JUROR JONES: Nobody knew anything all of the years that they were here, and nobody had a clue. She never said a word, never brought 27 up anything that’s going on. He packs up and moves to Kansas City, and within the first - - after being — 1 — engaged he proposes, she says yes, 30 days later she kicks him out, and then these 2 charges come up. 3 MS. CLARKE: So one of the main reasons is because the little girl didn’t say something sooner? — 4 — PROSPECTIVE JUROR JONES: No. It was that she never said anything, — 5 — or no one said anything. — 6 — MS. CLARKE: She, being the little girl? — 7 — PROSPECTIVE JUROR JONES: The mother or the daughter. — 8 — . . . — 9 — 10 MS. CLARKE: So it’s nothing about the criminal justice system that bothers you, or you think your stepson is being treated unfairly? — 11 — PROSPECTIVE JUROR JONES: No. — 12 — MS. CLARKE: It’s just the accusations in and of themselves? — 13 — 14 PROSPECTIVE JUROR JONES: Right; his fiancée. 15 MS. CLARKE: And you obviously know the nature of the charges in this case? — 16 — PROSPECTIVE JUROR JONES: Yes. — 17 — 18 MS. CLARKE: Do you still think you’d be able to sit here and be fair, despite knowing that your stepson is being unfairly treated? — 19 — PROSPECTIVE JUROR JONES: I believe so, yes. — 20 — . . . — 21 — 22 THE COURT: Let me clarify something, Mr. Jones, in my own mind here. I had the sense earlier on when you first mentioned the situation, that you felt that 23 the mother of the children engaged in a custody battle, was using this to somehow acquire advantage over the father by virtue of these accusations? — 24 — 25 PROSPECTIVE JUROR JONES: One hundred percent, yes. 26 THE COURT: All right. Recognizing that fact, in all fairness, you can’t really say whether there’s any validity to the charges or not. They just are suspect 27 because of the timing and the advantage they give the mother? Is that fair to say? — 1 — PROSPECTIVE JUROR JONES: Correct. — 2 — THE COURT: Just so I understand. — 3 — The State’s third peremptory challenge? — 4 — MS. CLARKE: thank you. The State would thank [and] excuse Juror No. — 5 — 280, Mr. Carl Jones. 6 Id. at 25-27, 30-33. 7 The State explained its challenge of Jones as follows: — 8 — [T]he State questioned him extensively on the fact that his stepson was 9 accused of a sexual crime; not just a sexual crime, but a sexual crime involving a four-year old little girl, his daughter. — 10 — He said that his stepson was treated unfairly and the State is concerned about — 11 — that, given the fact that we have a female victim in this case. When the State further 12 questioned him about why he didn’t believe the accusations were true, basically, he just said, well, it was an accusation and it took a long time and nobody said 13 anything. 14 This is a case where we have a few years go by before this disclosure so, certainly, it is the State’s concern that the fact there was a delayed disclosure might — 15 — systematically have him say: Well, I think he’s not guilty then, Judge. So that’s the 16 race-neutral reason for him. Reporter’s Transcript of Jury Trial, Exhibit 28, Part 2 (ECF No. 12-2) at 56. — 17 — Next, the State used its fifth peremptory challenge on Willie Daniels. Reporter’s — 18 — Transcript of Jury Trial, Exhibit 28, Part 1 (ECF No. 12-1) at 63. The State explained that it — 19 — challenged Daniels because it “did not want any young males on our jury; specifically, between — 20 — the ages of 18 and 25.” Reporter’s Transcript of Jury Trial, Exhibit 28, Part 2 (ECF No. 12-2) at — 21 — 57. The State further explained the following: — 22 — 23 It’s the State’s position that perhaps younger males may be more inclined to watch pornography, or be involved in it, or at least have a closer connection with it in the 24 sense that they may be in college, or just getting of college, et cetera. We did not want that to be an issue in this case, and that’s why we let Mr. Daniels go. — 25 — Id. — 26 — The State then used its seventh peremptory challenge on Bass Davis. Id. at 19. The State — 27 — — 1 — when [Davis] was asked to sit in this seat off to the left, Tom, your Bailiff, told him 2 to sit in a particular seat. He didn’t follow direction. He had to be told to get up and move seats. He didn’t follow direction. . . . However, additionally, Mr. Davis sat 3 here today, the State noticed, for one hour and 20 minutes straight with his arms folded and did not move his arms. Additionally, yesterday he had his arms folded 4 during primarily all the procedures. Yesterday as well he had his eyes closed, and it’s the State’s belief that he was falling asleep. I would certainly want attentive — 5 — jurors who are active participants, or at least actively listeners [sic] in our case. 6 Id. at 58. 7 The district court ruled that it did not “see any improper motivation, or any systemic 8 exclusion of any particular class or race or group of peers that would rise to a Batson challenge.” 9 Id. at 62. 10 Turning first to Jones, the State explained that it challenged him due to the allegations of 11 molestation made against his stepson and Jones’ belief that his stepson was being treated 12 unfairly. Reporter’s Transcript of Jury Trial, Exhibit 28, Part 2 (ECF No. 12-2) at 56. This 13 explanation is supported by Jones’ statements during voir dire. See Reporter’s Transcript of Jury 14 Trial, Exhibit 28, Part 1 (ECF No. 12-1) at 25-27, 30-33. In fact, the molestation allegations 15 made against Jones’ stepson were similar to the case at hand in that both victims did not 16 immediately come forward following the abuse. Although Jones stated that he would be a fair 17 juror and be able to keep the events regarding his stepson separate from the events of the trial, it 18 was reasonable for the State to have had concerns about Jones being on the jury, especially 19 regarding his beliefs that the alleged perpetrator, his stepson, was being treated unfairly. Indeed, 20 Jones insinuated that the allegations of molestation regarding his stepson were not believable 21 because they were not brought up sooner. Therefore, the Court cannot say that the trial court’s 22 acceptance of the prosecutor’s race-neutral explanations regarding Jones was unreasonable. Rice, — 23 — 546 U.S. at 338 . 24 Turning to Daniels, the State explained that it challenged him because he was a young 25 male who may be more inclined to watch pornography. Reporter’s Transcript of Jury Trial, 26 Exhibit 28, Part 2 (ECF No. 12-2) at 57. The State’s explanation is mildly unconvincing, as its 27 theory that young men may be more inclined to watch pornography was unsupported and 1 conclusory. The State also failed to explain how an inclination to watch pornography would 2 impact a prospective juror’s interpretation of the facts in this case. However, “disagree[ing] 3 about the prosecutor’s credibility” is not sufficient to overcome “the trial court’s credibility 4 determination.” Rice, 546 U.S. at 341-42 . The district court ruled that it did not “see any 5 improper motivation.” Reporter’s Transcript of Jury Trial, Exhibit 28, Part 2 (ECF No. 12-2) at 6 62. Accordingly, as “[s]tate-court factual findings . . . are presumed correct” and Chavez has 7 failed to rebut the trial court’s ruling by clear and convincing evidence, the Court cannot say that 8 the trial court’s acceptance of the State’s race-neutral explanations regarding Daniels was 9 unreasonable. Rice, 546 U.S. at 338-39 . 10 Turning finally to Davis, the State explained that it challenged him because he was 11 unable to follow instructions, sat with his arms folded, and had his eyes closed during a portion 12 of the proceedings. Reporter’s Transcript of Jury Trial, Exhibit 28, Part 2 (ECF No. 12-2) at 58. 13 Because an inattentive juror is a legitimate concern unrelated to race, the Court cannot say that 14 the trial court’s acceptance of the prosecutor’s race-neutral explanations regarding Davis was 15 unreasonable. Rice, 546 U.S. at 338 . 16 Accordingly, because Jones’ opinions about molestation plausibility, Daniel’s alleged 17 propensity for viewing pornography, and Davis’ apathetic behaviors are all unrelated to race and 18 could have caused genuine concern for the State, the Nevada Supreme Court’s ruling was not 19 contrary to, or an unreasonable application of, clearly established federal law, as determined by 20 the Supreme Court, and was not based on an unreasonable determination of the facts in light of 21 the evidence. See 28 U.S.C. § 2254 (d). The Court will deny Chavez habeas corpus relief with 22 respect to Ground 2. 23 Ground 3A 24 In Ground 3A, Chavez claims that his federal constitutional rights were violated when 25 Maningo failed to argue that the State had impermissibly exercised its peremptory challenges in 26 a discriminatory manner on the basis of gender. First Amended Petition for Writ of Habeas 27 Corpus (ECF No. 9) at 19. Chavez explains that had Maningo raised such an objection, it would 1 would have been seated. Id. at 20-21 . The Respondents argue that Maningo did make an 2 argument about gender-based peremptory challenges at the close of voir dire. Answer to 3 Remaining Claims Within Amended Petition for Writ of Habeas Corpus (ECF No. 51) at 11. 4 Chavez clarifies that Maningo objected under a general due process theory to the State’s use of 5 peremptory challenges to exclude males, but Maningo did not specifically argue that striking 6 young males constituted impermissible gender discrimination. Reply to Respondents’ Answer 7 (ECF No. 55) at 25. 8 This ground was raised on the appeal in Chavez’s state habeas appeal. See Appellant’s 9 Opening Brief, Ex. 66 (ECF No. 18-7) at 47 (“Trial counsel failed to make a Batson challenge 10 when the state announced that they intended to deplete the jury venireman of young males.”). 11 The Nevada Supreme Court held that Chavez — 12 — fails to demonstrate deficiency for this claim as counsel challenged the dismissal of 13 these jurors based on their gender and the district court denied that challenge. [Chavez] fails to demonstrate a reasonable probability of a different outcome had 14 counsel made further arguments regarding the dismissal of these jurors. Therefore, the district court did not err in denying this claim. — 15 — Order of Affirmance, Exhibit 71 (ECF No. 19-4) at 11. The Court finds that the ruling of the — 16 — Nevada Supreme Court was reasonable. — 17 — As recognized previously, in explaining why it challenged an African-American juror, — 18 — Willie Daniels, the State explained that it “did not want any young males on our jury; — 19 — specifically, between the ages of 18 and 25” because “this case involves pornography[, and i]t’s — 20 — the State’s position that perhaps younger males may be more inclined to watch pornography, or — 21 — be involved in it, or at least have a closer connection with it in the sense that they may be in — 22 — college, or just getting out of college.” Reporter’s Transcript of Jury Trial, Exhibit 28, Part 2 — 23 — (ECF No. 12-2) at 135. The State pointed out that it mistakenly believed that Chavez was — 24 — “excluding young males as well.” Id. (emphasis added). The State also indicated it “didn’t want — 25 — any younger males because of the pornography. Certainly, Judge, that’s not a systematic — 26 — exclusion of any particular group. It wasn’t just males, and it wasn’t just young people, it was — 27 — both combined.” Id. at 137 . In addition to Daniels, the State “also excluded [Christopher] Ward, 1 who was a young male.” Id. at 135 . In response, Maningo argued that “the State had stated that 2 their policy was to exclude males 18 to 25, and we would argue that that policy in itself violates 3 due process.” Id. at 136 . 4 Gender-based peremptory challenges violate the Fourteenth Amendment. J.E.B. v. 5 Alabama, 511 U.S. 127, 130-31 (1994) (“All persons, when granted the opportunity to serve on a 6 jury, have the right not to be excluded summarily because of discriminatory and stereotypical 7 presumptions that reflect and reinforce patterns of historical discrimination.”). As was explained 8 previously, “[t]he standards for assessing a prima facie case in the context of discriminatory 9 selection of the venire” are as follows: the defendant must “establish a prima facie case of 10 purposeful discrimination,” then the State must “come forward with a neutral explanation for 11 [the] challeng[e],” and then “[t]he trial court . . . will have the duty to determine if the defendant 12 has established purposeful discrimination.” Batson, 476 U.S. at 96-98 ; see also J.E.B., 511 U.S. 13 at 144-45. 14 The issue here is whether Maningo’s argument that “the State had stated that their policy 15 was to exclude males 18 to 25, and we would argue that that policy in itself violates due 16 process,” Reporter’s Transcript of Jury Trial, Exhibit 28, Part 2 (ECF No. 12-2) at 136, amounts 17 to making “a prima facie case of purposeful discrimination.” Batson, 476 U.S. at 96 . Although 18 Maningo could have articulated his argument more artfully by citing J.E.B. and arguing more 19 specifically that striking young males constituted impermissible gender discrimination, Maningo 20 did contest the State’s dismissal of young men. “A prima facie case under Batson requires only 21 that the objecting party show ‘that the totality of the relevant facts gives rise to an inference of 22 discriminatory purpose.’” Carrera v. Ayers, 699 F.3d 1104, 1110 (9th Cir. 2012) (citing Batson, — 23 — 476 U.S. at 93-94 ) (emphasis omitted); see also Johnson v. California, 545 U.S. 162, 170 (2005) 24 (“[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient 25 to permit the trial judge to draw an inference that discrimination has occurred.”). 26 Maningo brought the necessary facts to the trial court’s attention: the State was utilizing a 27 policy of excluding young men. By highlighting this exclusion policy, Maningo directed the trial 1 the first step articulated in Batson for challenging a peremptory challenge. Accordingly, it cannot 2 be determined that Maningo’s “representation fell below an objective standard of 3 reasonableness.” Strickland, 466 U.S. at 694 . Thus, the Nevada Supreme Court’s ruling was not 4 contrary to, or an unreasonable application of, clearly established federal law, as determined by 5 the Supreme Court, and was not based on an unreasonable determination of the facts in light of 6 the evidence. See 28 U.S.C. § 2254 (d). The Court will deny Chavez habeas corpus relief with 7 respect to Ground 3A. 8 Ground 3B 9 In Ground 3B, Chavez claims that his federal constitutional rights were violated due to 10 Maningo’s failure to object when the State argued that the victim could not consent due to her 11 age. First Amended Petition for Writ of Habeas Corpus (ECF No. 9) at 21. Chavez explains that 12 age is only relevant and becomes an element in a sexual assault case when determining the 13 sentence one receives if found guilty. Id. at 22 . Chavez explained that he was prejudiced by 14 Maningo’s lack of an objection because the State was relieved of proving beyond a reasonable 15 doubt that the victim did not consent to the sexual encounters with Chavez. Id. The Respondents 16 argue that the State never made this argument at trial. Answer to Remaining Claims Within 17 Amended Petition for Writ of Habeas Corpus (ECF No. 51) at 11. 18 This ground was raised on the appeal in Chavez’s state habeas appeal. See Appellant’s 19 Opening Brief, Ex. 66 (ECF No. 18-7) at 47 (“[T]he fact of whether or not the victim consented 20 is removed from the jury’s consideration by the fact that they are instructed that the age of the 21 victim prevents her from giving legal consent.”). The Nevada Supreme Court held that Chavez — 22 — fails to demonstrate that his counsel’s performance was deficient or that he was 23 prejudiced. The State did not argue that the victim could not consent; rather it properly argued that the victim’s characteristics, including her age, demonstrated 24 that she did not legally consent to the sexual activity. [Chavez] fails to demonstrate a reasonable probability of a different outcome had counsel objected. Therefore, 25 the district court did not err in denying this claim. 26 Order of Affirmance, Exhibit 71 (ECF No. 19-4) at 7-8 (internal citation omitted). The Court 27 finds that the ruling of the Nevada Supreme Court was reasonable. 1 The State made several arguments regarding consent during its closing argument. See 2 Reporter’s Transcript of Jury Trial, Exhibit 31 Part 2 (ECF 15-1), Exhibit 31 Part 3 (ECF 15-2). 3 First, the State asked, “[i]s a 12-year old capable of giving consent?” Reporter’s Transcript of 4 Jury Trial, Exhibit 31 Part 2 (ECF 15-1) at 14. Second, the State argued that: — 5 — She’s a child. When the defendant started abusing her she was 12 years old. 6 Is she mentally capable of understanding the nature of the defendant’s conduct? Understanding the nature of what it means to: Hey, take off your pants and get on 7 the bed? No, she’s not. 8 A person is not required to do more than her age, strength, surrounding facts and attending circumstances to make it reasonable for her to do, to manifest — 9 — opposition to a sexual assault. — 10 — But she did. Didn’t she try to fight him off? The first time she struggled 11 with him. The second time she’s pushing him. The third time he slapped her across the face. And, finally, she said: you know what, I’m done fighting because he’s 12 going to do it anyway. She told you that. He was going to do it anyway, and at some point isn’t it easier to just give up. — 13 — 14 But that doesn’t mean that it was with her consent, even if you find that she had the mental capacity to consent based on her age. — 15 — Id. at 16 . Finally, the State argued that: — 16 — The reason why that’s important is, I mentioned the lewdness with a minor 17 being an alternative count. If you find that she consented, or if you find she had the mentally [sic] capacity to consent and did, if you believe that her hand touched his — 18 — penis during this time, then he’s guilty of lewdness with a minor for having her 19 touch his penis with her hands. 20 Because, again remember consent is not a defense to lewdness. It is, however, a defense to sexual assault. So that’s where the lewdness alternative count 21 comes in. You remember [the victim] testified that she didn’t struggle. She said he had his way three times before, he’ll end up doing it again. — 22 — Id. at 22 . — 23 — The State is prohibited from using burden-shifting or conclusive presumptions that — 24 — relieve the State of its burden of proving every element beyond a reasonable doubt. Sandstrom v. — 25 — Montana, 442 US 510, 520-24 (1979). In Nevada, “an alleged perpetrator’s knowledge of lack of — 26 — consent is an element of sexual assault.” Carter v. State, 121 Nev. 759, 766 , 121 P.3d 592 , 596 — 27 — 1 presumption that a victim cannot consent, thereby improperly relieving the State of his burden to 2 prove that the victim did not consent. 3 Although the State did not explicitly state that the victim was incapable of giving consent 4 because of her age, the State did tread close to closing that line. The follow statements imply, in 5 some capacity, that the victim could not consent: (1) “[i]s a 12-year old capable of giving 6 consent”; (2) “if you find that she had the mental capacity to consent based on her age”; and (3) 7 “if you find she had the mentally [sic] capacity to consent.” Reporter’s Transcript of Jury Trial, 8 Exhibit 31, Part 2 (ECF No. 15-1) at 14, 16, 22. 9 However, even if Maningo’s failure to object to these statements amounts to 10 “representation [that] fell below an objective standard of reasonableness,” Chavez must also 11 demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, 12 the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694 . 13 Following these potentially improper statements, the State clarified that “consent is . . . a defense 14 to sexual assault.” Reporter’s Transcript of Jury Trial, Exhibit 31, Part 2 (ECF No. 15-1) at 22. 15 Moreover, Maningo took the opportunity several times in his closing argument to stress to the 16 jury that consent is a defense to sexual assault. Reporter’s Transcript of Jury Trial, Exhibit 31, 17 Part 3 (ECF No. 15-2) at 6-7 (“consent is a defense” to sexual assault); at 13 (“You’ll see the 18 consent instruction. It explains that consent is a defense to sexual assault.”); at 14 (“You may not 19 agree that a 14 [year old] should be allowed to consent, but that is the defense in this case. And 20 so now you have to look at whether or not you think it was consensual. Now, consent for 21 someone who is 14 years of age, that can be a difficult concept, admittedly. But we can’t be so 22 naïve as to think that teenagers do not make their own decision.”). Therefore, even though the 23 State may have made some questionable statements regarding consent, the clarifying remarks by 24 Maningo and the State regarding consent do not support a finding that but for Maningo’s failure 25 to object, the result of Chavez’s trial would have been different. Strickland, 466 U.S. at 694 . 26 Thus, the Nevada Supreme Court’s ruling that there was no prejudice was not contrary to, or an 27 unreasonable application of, clearly established federal law, as determined by the Supreme 1 See 28 U.S.C. § 2254 (d). The Court will deny Chavez habeas corpus relief with respect to 2 Ground 3B. 3 Ground 3C 4 In Ground 3C, Chavez claims that his federal constitutional rights were violated when 5 Maningo failed to conduct an adequate investigation. First Amended Petition for Writ of Habeas 6 Corpus (ECF No. 9) at 23. Specifically, Chavez argues that he wanted Maningo to call Carla 7 Menjivar, Alma Pattarroyo and Wendy Linares, but instead, he only called Menjivar. Id. Chavez 8 also argues that Pattarroyo’s testimony was critical in establishing the defense that the victim 9 fabricated the sexual assaults and that the victim went after Chavez. Id. at 24 . The Respondents 10 argue that it was a strategic decision to call Menjivar instead of Pattarroyo and Linares. Answer 11 to Remaining Claims Within Amended Petition for Writ of Habeas Corpus (ECF No. 51) at 13. 12 Chavez made such a claim on the appeal in his state habeas action with respect to 13 Maningo’s alleged failure to investigate and call Alma Pattarroyo. See Appellant’s Opening 14 Brief, Exhibit 66 (ECF No. 18-7) at 1. Accordingly, this portion of Ground 3C has been 15 exhausted. The Nevada Supreme Court held that Chavez — 16 — fails to demonstrate that his trial counsel’s performance was deficient or that he was 17 prejudiced. Counsel testified at the evidentiary hearing that his investigator interviewed [Pattarroyo] and that counsel did not want to call her as a witness 18 because she and [Chavez] had had a sexual relationship. [Chavez] fails to demonstrate that reasonably diligent counsel would have personally interviewed 19 [Pattarroyo] or that there was a reasonable probability of a different outcome at trial had counsel personally interviewed [Pattarroyo]. Therefore, the district court did — 20 — not err in denying this claim. 21 Order of Affirmance, Exhibit 71 (ECF No. 19-4) at 4. As will be discussed, the Court finds that 22 this ruling of the Nevada Supreme Court was reasonable. 23 However, Chavez did not, on the appeal in his state habeas action, claim that Maningo 24 was ineffective for failing to adequately investigate Wendy Linares. See Appellant’s Opening 25 Brief, Exhibit 66 (ECF No. 18-7). Therefore, in the July 27, 2015, order, the Court found this 26 portion of Ground 3C to be unexhausted in state court. See Order filed July 27, 2015 (ECF No. 27 33) at 6. The Court stayed this action while Chavez exhausted this portion of this claim in state 1 court. Id. at 12 . Thereafter, Chavez filed a Post-Conviction Petition for Writ of Habeas Corpus, 2 and the state district court denied the petition because it was procedurally barred and Chavez 3 “fail[ed] to show good cause and prejudice.” Findings of Fact, Conclusions of Law and Order, 4 Exhibit 80 (ECF No. 40-7) at 4. The Nevada Court of Appeals affirmed. See Order of 5 Affirmance, Exhibit 86 (ECF No. 40-13). The Court lifted the stay in this action on December 6 12, 2016. See Order (ECF No. 43). 7 Chavez argues that ineffective assistance of counsel in his first state habeas action was 8 cause for his procedural default of this portion of this claim. See Opposition to Motion to 9 Dismiss (ECF No. 47). In the January 29, 2018, order, the Court found that Chavez’s argument, 10 which is based on Martinez v. Ryan, 566 U.S. 1 (2012), raised the question of the merits of this 11 portion of Ground 3C, and that, as a result, the matter of the procedural default of this ground 12 would be better addressed after the Respondents filed an answer, and Chavez a reply. See Order 13 filed January 29, 2018 (ECF No. 50) at 5-6. The Court now determines that Chavez’s post14 conviction counsel was not ineffective for not asserting this claim, and that, at any rate, the claim 15 is not substantial, and is without merit, because Chavez does not show that Maningo was 16 deficient. 17 Pattarroyo and Linares were on Chavez’s witness list prior to trial. See Defendant’s 18 Notice of Witnesses, Exhibit 21 (ECF No. 11-10); Defendant’s Notice of Witnesses, Exhibit 22 19 (ECF No. 11-11). However, neither of these witnesses were called to testify. Instead, Carla 20 Menjivar, Chavez’s wife, was the only witness to testify for Chavez at his trial. See Reporter’s 21 Transcript of Jury Trial, Exhibit 31, Part 1 (ECF No. 15) at 40. Menjivar testified that the victim, 22 her half-sister, would “follow [Chavez] around a lot,” would try to massage Chavez’s shoulders, 23 would flirt with Chavez, and would call him a lot. Id. at 42-43, 46 . Menjivar also testified that 24 the victim never appeared afraid of Chavez, never told her she was afraid of Chavez, never told 25 her anything inappropriate was going on with Chavez, and never heard the victim screaming or 26 crying out for help. Id. at 42-43 . Menjivar testified that the victim “lies a lot.” Id. at 44 . 27 At the post-conviction evidentiary hearing, Maningo testified that Chavez wanted him to 1 at 5, 9. Although Maningo’s investigator interviewed Pattarroyo and Linares, Maningo explained 2 that he did not call Pattarroyo or Linares because “Carla [Menjivar] was the witness who actually 3 saw how her sister [the victim] acted and, and knew her sister’s character” whereas “[t]he other 4 two were essentially witnesses that received their information from Carla.” Id. at 9, 12 . 5 Therefore, Maningo believed there would be hearsay issues with regard to Pattarroyo’s and 6 Linares’ testimonies. Id. at 12 . Maningo also explained that he also did not want to call 7 Pattarroyo because Chavez “had had sex with her.” Id. at 13 ; see also Reporter’s Transcript of 8 Jury Trial, Exhibit 29 Part 1 (ECF 13) at 62-63 (testimony of the victim that she walked in on 9 Chavez and her mother, Pattarroyo on the bathroom floor). Finally, Maningo explained that he 10 was able to get out his theories of defense—consent and the victim’s lack of credibility—through 11 Menjivar’s testimony and that there was “[n]othing more based on [his and his investigator’s] 12 investigation” of Pattarroyo or Linares that could have added to the trial. Reporter’s Transcript of 13 Evidentiary Hearing, Exhibit 59 (ECF 18) at 13, 17. 14 Chavez testified at the post-conviction hearing that he wanted Pattarroyo and Linares to 15 testify because “[t]hey knew the lifestyle that the [victim] was living.” Id. at 21 . Specifically, 16 with regard to Pattarroyo, the victim’s mother, he wished to have her “testify because she had 17 more to say about” the victim than Menjivar, the victim’s half-sister, did. Id. 18 Although it is unclear what Linares’ testimony would have been, Pattarroyo signed a 19 declaration explaining what her testimony would have been.1 See Declaration of Alma Emely 20 Pattarroyo, Exhibit 73 (ECF No. 19-6). Pattarroyo declared that the victim was never alone when — 21 — 22 1This declaration was not submitted in Chavez’s first state petition for writ of habeas corpus. In its order denying in part and granting in part the motion to dismiss and granting the motion for 23 stay, the Court indicated that the declaration was inadmissible in this federal habeas action. See Order filed July 27, 2015 (ECF No. 33) at 6 n.4 (citing Cullen v. Pinholster, 563 U.S. 170 , 181 24 (2011) (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”)). Chavez presented this declaration before the state court — 25 — when he filed his second petition, but that petition was ruled procedurally barred in state court. 26 See Index of Exhibits in Support of Petition for Writ of Habeas Corpus, Exhibit 75 (ECF No. 402); Findings of Fact, Conclusions of Law and Order, Exhibit 80 (ECF No. 40-7) at 4. However, 27 whether the Court considers the impact of this declaration under a Martinez analysis or refuses to 1 she visited Chavez’s home, the victim flirted heavily with Chavez, and, on one occasion, she 2 heard noises from the victim’s room and heard someone, who she believed to be Chavez, exit 3 through an exterior door of the victim’s room. Id. at 2-4. Contrary to Maningo’s testimony given 4 at the post-conviction hearing, Pattarroyo also declared that she was never “interviewed by any 5 individual and/or member of a defense team, with regard to Edilfredo Chavez’s case, until [she] 6 was interviewed by the Federal Public Defender’s Officer, District of Nevada.” Id. at 4. 7 Although Chavez argues that Pattarroyo’s and Linares’ testimonies were necessary to 8 establish his defense that the victim fabricated the sexual assaults, that argument is belied by the 9 record. In fact, Menjivar’s testimony spoke directly to Chavez’s defense: Menjivar established 10 that the victim had an affinity for Chavez and that her opinion was that the victim was not 11 truthful. See Reporter’s Transcript of Jury Trial, Exhibit 31, Part 1 (ECF No. 15) at 43-45. 12 Accordingly, Pattarroyo’s and Linares’ testimonies would have been cumulative. See United 13 States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990) (“The Constitution does not oblige 14 counsel to present each and every witness that is suggested to him. In fact, such tactics would be 15 considered dilatory unless the attorney and the court believe the witness will add competent, 16 admissible and non-cumulative testimony to the trial record.”). Moreover, Maningo’s 17 explanation that he did not call Pattarroyo to testify because she had had sexual relations with 18 Chavez demonstrates that his decision was a tactical one. See Minner v. Kerby, 30 F.3d 1311 , 19 1317 (10th Cir. 1994) (“[T]he decision of what witnesses to call is a tactical one within the trial 20 counsel’s discretion.”); cf. Strickland, 466 U.S. at 691 (1984) (“In any ineffectiveness case, a 21 particular decision not to investigate must be directly assessed for reasonableness in all the 22 circumstances, applying a heavy measure of deference to counsel’s judgments.”). Additionally, it 23 is unclear what additional “lifestyle” evidence of the victim Chavez believed would have been 24 provided by Linares or Pattarroyo. See Reporter’s Transcript of Evidentiary Hearing, Exhibit 59 25 (ECF 18) at 21. It is also unclear how the victim’s “lifestyle” would have provided evidence 26 showing that she was untruthful. Therefore, it cannot be determined that Maningo’s 27 “representation fell below an objective standard of reasonableness” when he failed to call 1 Because Chavez has not shown this claim of ineffective assistance of counsel regarding 2 Maningo’s failure to call Linares to be substantial, he has not shown that his post-conviction 3 counsel was ineffective for failing to raise it. And because Chavez’s post-conviction counsel was 4 not ineffective, there is no cause for Chavez’s procedural default. See Martinez, 566 U.S. at 9 5 (“Inadequate assistance of counsel at initial-review collateral proceedings may establish cause 6 for a prisoner’s procedural default of a claim of ineffective assistance at trial.”). Therefore, this 7 portion of Ground 3C—the failure to call Linares to testify—will be denied on the ground that it 8 is procedurally defaulted. 9 Turning to the remainder of Ground 3C—the failure to call Pattarroyo to testify— 10 because Maningo’s was not deficient, the Nevada Supreme Court’s ruling that there was no 11 deficiency or prejudice, see Order of Affirmance, Exhibit 71 (ECF No. 19-4) at 4, was not 12 contrary to, or an unreasonable application of, clearly established federal law, as determined by 13 the Supreme Court, and was not based on an unreasonable determination of the facts in light of 14 the evidence. See 28 U.S.C. § 2254 (d). Therefore, Chavez will be denied habeas corpus relief 15 regarding the remainder of Ground 3C. 16 Certificate of Appealability 17 The standard for the issuance of a certificate of appealability requires a “substantial 18 showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c). The Supreme Court has 19 interpreted 28 U.S.C. § 2253 (c) as follows: — 20 — Where a district court has rejected the constitutional claims on the merits, the 21 showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the 22 constitutional claims debatable or wrong. 23 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074 , 1077-79 24 (9th Cir. 2000). 25 Applying this standard, the Court finds that a certificate of appealability is unwarranted in 26 this case. The Court will deny Chavez a certificate of appealability. 27 /// 1 || Conclusion 2 It is therefore ordered that the First Amended Petition for Writ of Habeas Corpus by a 3 || Person in State Custody Pursuant to 28 U.S.C. § 2254 (ECF No. 9) is denied. 4 It is further ordered that Petitioner is denied a certificate of appealability. 5 It is further ordered that, pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of 6 || Court is directed to substitute Renee Baker for Robert LeGrand as the Respondent warden on the 7 || docket for his case. 8 It is further ordered that the Clerk of the Court is directed to enter judgment accordingly. 9 “DATED: This 12 day of September, 2019. 14 UNITED STATES PJSTRICT JUDGE — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —