Escobar v. Scillia et al

Filing 90

ORDER. IT IS ORDERED that 11 petitioner's amended petition for writ of habeas corpus is DENIED. The Clerk shall enter judgment accordingly. Signed by Judge Kent J. Dawson on 7/10/2018. (Copies have been distributed pursuant to the NEF - ADR) (Main Document 90 replaced on 7/10/2018) (DXS).

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***
CARLOS ESCOBAR,

7

Case No. 2-10-cv-01973-KJD-NJK
Petitioner,

8

ORDER

v.
9
BRIAN E. WILLIAMS, et al.,
10
Respondents.
11
Before the court for a decision on the merits is an application for a writ of habeas

12
13

corpus filed by Carlos Escobar, a Nevada prisoner. ECF No. 11.

14

I. BACKGROUND 1

15

Escobar was convicted in the state district court for Clark County, Nevada, of

16

discharge of a firearm at or into a vehicle (count I), attempted murder with the use of a

17

deadly weapon (count II), and first-degree murder with the use of a deadly weapon

18

(count III). At trial, the State presented evidence that, on September 28, 1995, Escobar

19

got into a heated argument with Wilfredo Sanchez that culminated in Escobar taking a

20

handgun from his companion Carlos Cruz’s waistband and shooting Sanchez four times,

21

but not killing him. The State’s evidence further established that Escobar fired several

22

shots into a van parked nearby, killing one of its occupants, Daniel Arreguin. 2
On November 12, 1998, the court sentenced Escobar to 16-72 months on count I,

23
24

53-240 months on count II, plus an equal and consecutive sentence of 53-240 months

25
26
27
28

1

This procedural background is derived from the exhibits located at ECF Nos. 12-17, 50, and 56, and from
this court's own docket entries.

2

At the same trial, Escobar was also charged with the murder of Francisco Cabral, which occurred on
October 17, 1995. The jury found Escobar not guilty on that charge.

1

for the enhancement on count II (to run concurrently with count I), and life without the

2

possibility of parole, plus an equal and consecutive sentence of life without the possibility

3

of parole for the enhancement on count III (to run consecutively to count II). A judgment

4

of conviction was entered on December 2, 1998. Escobar appealed. On August 11,

5

2000, the Nevada Supreme Court affirmed the judgment of the district court.
On November 14, 2000, Escobar filed a proper person state habeas petition in

6
7

the state district court. After appointed counsel delayed in filing a supplemental state

8

habeas petition, Escobar filed a proper person petition for writ of mandamus with the

9

Nevada Supreme Court. The court granted the petition, ordering the state district court to

10

appoint new habeas counsel. Following appointment of new counsel, Escobar filed a

11

supplemental brief in support of writ of habeas corpus on November 5, 2007, and an

12

amended supplemental brief on December 3, 2007.
Following a hearing in the state district court, the court denied the state habeas

13
14

petitions. Escobar appealed. On September 29, 2010, the Nevada Supreme Court

15

affirmed.
Escobar then initiated this proceeding in November 2010. Having been appointed

16
17

counsel, Escobar filed an amended petition for writ of habeas corpus on October 27,

18

2011.

19

On February 19, 2013, this court granted, in part, respondents’ motion to dismiss

20

claims in that petition, finding Ground One to be procedurally barred and finding

21

Grounds Two, Three, Four, Five, Six, and Ten to be unexhausted. The court

22

subsequently granted Escobar’s motion for stay and abeyance to allow him to exhaust

23

state court remedies for the unexhausted claims.

24

On April 19, 2013, Escobar filed his second state habeas petition. The state

25

district court denied the petition, finding the petition untimely pursuant to Nev. Rev. Stat.

26

§ 34.726, second and successive pursuant to Nev. Rev. Stat. § 34.810, and barred by

27

laches pursuant to Nev. Rev. Stat. § 34.800. On September 16, 2014, the Nevada

28

Supreme Court affirmed the denial of the second state habeas petition, imposing both
2

1

§ 34.726 and § 34.810. The court also found that Escobar failed to demonstrate cause

2

and prejudice to overcome the procedural bars.

3

On January 8, 2015, this court granted Escobar’s motion to reopen this federal

4

action. Respondents then moved to dismiss Grounds Two, Three, Four, Five, Six, and

5

Ten of Escobar’s amended federal petition as procedurally defaulted. This court granted

6

respondents’ motion as to Grounds Two, Four, and Five, but reserved judgment as to

7

Grounds Three, Six, and Ten, pending a determination whether petitioner’s defaults

8

should be excused under Martinez v. Ryan, 566 U.S. 1 (2012).

9
10

Grounds Three, Six, Seven, Eight, Nine, and Ten have been fully briefed and are
before the court for decision.

11

II. STANDARDS OF REVIEW

12

This action is governed by the Antiterrorism and Effective Death Penalty Act

13

(AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:

14
15
16
17
18
19
20

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.

21

A decision of a state court is "contrary to" clearly established federal law if the

22

state court arrives at a conclusion opposite that reached by the Supreme Court on a

23

question of law or if the state court decides a case differently than the Supreme Court

24

has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-

25

06 (2000). An "unreasonable application" occurs when "a state-court decision

26

unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case."

27

Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court

28
3

1

concludes in its independent judgment that the relevant state-court decision applied

2

clearly established federal law erroneously or incorrectly." Id. at 411.

3

The Supreme Court has explained that "[a] federal court's collateral review of a

4

state-court decision must be consistent with the respect due state courts in our federal

5

system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a

6

'highly deferential standard for evaluating state-court rulings,' and 'demands that state-

7

court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773

8

(2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti,

9

537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks

10

merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the

11

correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011)

12

(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has

13

emphasized "that even a strong case for relief does not mean the state court's contrary

14

conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003));

15

see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA standard

16

as "a difficult to meet and highly deferential standard for evaluating state-court rulings,

17

which demands that state-court decisions be given the benefit of the doubt") (internal

18

quotation marks and citations omitted).

19

"[A] federal court may not second-guess a state court's fact-finding process

20

unless, after review of the state-court record, it determines that the state court was not

21

merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.

22

2004); see also Miller-El, 537 U.S. at 340 ("[A] decision adjudicated on the merits in a

23

state court and based on a factual determination will not be overturned on factual

24

grounds unless objectively unreasonable in light of the evidence presented in the state-

25

court proceeding, § 2254(d)(2).").

26

Because de novo review is more favorable to the petitioner, federal courts can

27

deny writs of habeas corpus under § 2254 by engaging in de novo review rather than

28
4

1

applying the deferential AEDPA standard. Berghuis v. Thompkins, 560 U.S. 370, 390

2

(2010).
III. DISCUSSION3

3

Ground Seven

4

In Ground Seven, Escobar claims that his constitutional right to confront

5
6

witnesses against him was violated when the trial court denied admission of a statement

7

written by defense witness Giorgianna Arellano. Arellano, the manager of an apartment

8

complex in California, was called by the State as a rebuttal witness and testified that

9

Escobar had visited his sister at the complex, but had never lived there. ECF No. 15-19,

10

p. 62-70. 4 On cross-examination, Escobar’s counsel impeached her testimony with her

11

prior written statement on a photo lineup form that identified Escobar as a previous

12

resident who lived with his sister. Id., p. 73-77.
When defense moved to admit the photo lineup form, the court sustained the

13
14

State’s objection to its admission. Id., p. 77-78. Following additional argument on the

15

issue, the trial court confirmed its ruling, stating as follows:
Well, whether alibi or not, the witness testified she did, in fact, make
the statement. The witness testified that that is how she, in fact, filled it out.
The witness testified later that on rethought that was incorrect. So the jury
has all that before them. So with her having testified, the Court saw and
sees no reason for its admission. The record has been made.

16
17
18
19

Id., p. 83.
Escobar argued to the Nevada Supreme Court on direct appeal that the trial

20
21

court’s ruling violated his rights under the Confrontation Clause of the Sixth and

22

Fourteenth Amendments. ECF No. 16-10, p. 29-32. The Nevada Supreme Court

23

addressed the claim as follows:
Escobar next contends that the district court committed reversible
error by refusing evidence of a written prior inconsistent statement of a
rebuttal witness called to testify by the State.

24
25
26
27
28

3

The court addresses Escobar’s ineffective assistance of counsel claims together after addressing his other
three claims. For that reason, the discussion of Escobar’s claims is not in numerical order.
4

Page number citations for ECF documents are based on CM/ECF pagination.

5

1
2

Giorgianna Arellano was the apartment manager of a Los Angeles
apartment complex where Escobar’s sister resided. She was called as a
rebuttal witness by the State to contradict testimony by Escobar that he left
Las Vegas to reside in California with his sister just after the shooting.

3
4
5
6
7
8
9
10
11
12

When questioned by a district attorney’s investigator about Escobar,
Arellano was shown a photographic line-up and identified Escobar as an
individual she had seen within the apartment complex. Arellano also gave
a written statement on which she wrote, “number 5A is the only picture that
looks familiar to me. It looks like a previous resident that lived with his
sister.” At trial, however, Arellano testified that her printed statement was
incorrect and that she had intended to convey that Escobar used to
visit relatives residing in the apartment complex.
Escobar attempted to admit Arellano’s printed statement into
evidence. The State objected on the grounds that “it would over emphasize
her testimony, and she’s already explained her testimony and already
described what she said in the statement.” The district court sustained the
State’s objection.
According to Escobar, the failure to admit the printed statement was
contrary to the language of NRS 51.032(2)(a)1 and violated his rights under
the Confrontation Clause of the Sixth and Fourteenth Amendments of the
United States Constitution.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The determination of whether to admit evidence is within the sound
discretion of the district court, and that determination will not be disturbed
unless manifestly wrong. See Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d
503, 508 (1985). Pursuant to NRS 51.035(2)(a), a prior inconsistent
statement may be admissible for both substantive and impeachment
purposes when the declarant testifies at the trial or hearing, is subject to
cross-examination concerning the statement, and the statement is
inconsistent with his testimony.
We conclude that the district court did not err in failing to admit the
written statement. Although there was no compelling reason to reject
admissibility of the written statement, failure to formally admit it into
evidence did not prejudice Escobar. First, the statement would not have
served to exculpate him; second, the jury was made fully aware of the
inconsistencies through oral examination of the witness by Escobar’s
counsel. See Miranda v. State, 101 Nev. 562, 567, 707 P.2d 1121, 1124
(1985). Moreover, whether Escobar continuously lived in California
subsequent to the shooting was wholly a collateral matter.
________________________
1

NRS 51.035(2)(a) provides that a statement is not hearsay if the
declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is
inconsistent with his testimony.

ECF No. 16-15, p. 3-5.
The Confrontation Clause of the Sixth Amendment guarantees defendants the
opportunity to cross-examine the prosecution's witnesses. Delaware v. Van Arsdall, 475
6

1

U.S. 673, 678 (1986). Defendants are not, however, entitled to “cross-examination that is

2

effective in whatever way, and to whatever extent, the defense might wish.” Delaware v.

3

Fensterer, 474 U.S. 15, 20 (1985). In Fowler v. Sacramento Cty. Sheriff's Dep't, the

4

Ninth Circuit used the following approach to determine if the trial court's limitation on a

5

defendant’s right to cross-examination was an objectively unreasonable application of

6

federal law:

7
8
9

We consider first whether the proffered cross-examination
sufficiently bore upon [the witness’s] reliability or credibility such that a jury
might reasonably have questioned it, and, if so, whether the trial court's
preclusion of this cross-examination was unreasonable, arbitrary or
disproportionate given its concerns about waste of time, confusion and
prejudice.

10
11

421 F.3d 1027, 1038 (9th Cir. 2005).

12

Here, Arellano’s written statement arguably bore upon her reliability or credibility

13

such that a jury might have reasonably relied up on it to question it. However, because

14

defense counsel was permitted to refer to the statement in cross-examining Arellano,

15

admitting the statement into evidence would have had only marginal impeachment

16

effect. And, in any case, the trial court’s exclusion of the statement was not

17

unreasonable, arbitrary, or disproportionate to legitimate concerns. Even if the

18

statement was not excludable as hearsay, the trial court reasonably concluded that it

19

was cumulative. Thus, exclusion of the written statement was not an objectively

20

unreasonable application of federal law.

21

In addition, violations of the Confrontation Clause are trial errors subject to

22

harmless-error analysis. Van Arsdall, 475 U.S. at 684. If the error did not result in “actual

23

prejudice,” the writ should not issue. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)

24

(adopting standard of Kotteakos v. United States, 328 U.S. 750 (1946)). “Actual

25

prejudice” is demonstrated if the error in question had a “substantial and injurious effect

26

or influence in determining the jury's verdict.” Id. at 623. It was not disputed at trial that

27

Escobar was present during the Arreguin/Sanchez shooting. Arellano’s testimony bore

28
7

1

only upon whether he was present for the Cabral murder, for which he was acquitted.

2

Thus, any error arising from the exclusion of Arellano’s written statement was harmless.

3

Ground Seven is denied.
Ground Eight

4
5

In Ground Eight, Escobar claims that his constitutional rights to due process and

6

trial before an impartial jury were violated because the reasonable doubt instruction

7

issued by the court combined with the prosecutor’s comments in closing argument

8

improperly minimized the State’s burden of proof. The instruction at issue read, in part,

9

as follows:

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

A reasonable doubt is one based on reason. It is not a mere
possible doubt but is such a doubt as would govern or control a person in
the more weighty affairs of life. If the minds of the jurors, after the entire
comparison and consideration of all the evidence, are in such a condition
that they can say they feel an abiding conviction of the truth of the charge,
there is not a reasonable doubt. Doubt to be reasonable must be actual,
not mere possibility or speculation.
ECF No. 15-22, p. 39.
The comments by the prosecutor Escobar relies upon in making this claim are as
follows:
And let's talk about reasonable doubt. That instruction is, basically,
the foundation for the criminal justice system. And you have to take this
into consideration of the history of our country. You can go back during the
foment of trying to break away and form our own country. That was started
and those principles were eventually developed and flourished as a result
of everyday people. You know, the candlestick makers, cobblers, ranchers,
farmers, ship builders, everyday people talking about the problems of the
day. That's why the jury system is so important, because that's what you
are, in your various areas. You have all different experiences. But guess
what, the same principle was good then, the same principle is good now.
And it lasts through this reasonable doubt instruction.
But it is not something to be feared. In this instruction it says, 37, it
says the Defendant is presumed innocent until the contrary is proved. Well
the defendant has been stripped of his innocence at this point with the
evidence you have. The instruction goes on. It says this presumption
places upon the State the burden of proving beyond a reasonable doubt -reasonable doubt, remember that word - - everything material element -the other principle we're talking about -- of the crime charged and that
the Defendant is the person who committed the offense.

27
28

See how important that is. But you shouldn't be intimidated,
because it goes on and explains to you a reasonable doubt is one based
8

1
2
3
4
5
6
7
8

on reason. Now that's a silly statement taken by itself. It's redundant. Now
why would that sentence be there? It's there because it's emphasizing the
word reasonable. A reasonable doubt is one based on reason. It is not
mere possible doubt that is such a doubt -- okay, excuse me. It is not mere
possible doubt but is such a doubt as would govern or control a person in
the more weighty affairs of life. Well what are some of the more weighty
affairs of life that you've had? We've talked about some of this.
What have you done? You've made decisions. Now, is it moving,
buying a house, not if you're a realtor. That's not one of the more weighty
affairs of life. But if you put your time and money into it and you're buying
your one-time house and it’s taken you years and you've finally gotten to it.
But of course you don't have years here, but you made that decision and
you've been able to make that decision, whoever it may be. Is it getting
married? Maybe. Not for Johnny Carson. He's been married too many
times. But for that commitment, that's what they're talking about.

9
10
11
12
13
14

But every one of you has something different in you where you've
made that decision, whatever it may be, where you've committed. It's not
something, when somebody mentioned here when we were going through
jury selection, beyond any doubt or beyond a shadow of doubt. None of
those words are in here. It's beyond a reasonable doubt. You see, it's
something you can handle, because you're all reasonable people. That's
what's important here. It's nothing that's out of your grasp. It's something
you can handle. It's nothing to be feared, It's something to be cherished.
ECF No. 15-20, p. 54-55.

15

Escobar argued to the Nevada Supreme Court on direct appeal that the

16

prosecutor’s comments quantifying reasonable doubt constituted reversible error. ECF

17

No. 16-10, p. 32-35. The Nevada Supreme Court addressed the claim as follows:

18

Lastly, Escobar asserts that the State improperly quantified the
reasonable doubt instruction, which admonishes that “[a] reasonable doubt
is one based on reason. . . . It is not a mere possible doubt but is such a
doubt as would govern or control a person in the more weighty affairs of
life.” The State then went on to discuss the decision to buy a house or
marry.

19
20
21
22
23
24
25
26
27
28

These comments were improper in light of our decision in Holmes v.
State, 114 Nev. 1357, 1366, 972 P.2d 337, 343 (1998) (holding that
prosecutorial commentary analogizing reasonable doubt with major life
decisions is improper).2 We conclude, however, that any error was cured
by the reasonable doubt instruction, which complied with NRS 175.211.3
See Lord v. State, 107 Nev. 28, 35, 806 P.2d 548, 552 (1991).
__________________________
2

We note that the Holmes decision was rendered subsequent to the
time that the comments at issue in this case were made.
3

We further note that Escobar failed to object to the State’s
comments at trial, and therefore, did not properly preserve the issue
for appeal. See Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400,
9

1

402 (1992). However, we have chosen to address the matter on its
merits.

2
3
4

ECF No. 16-15, p. 5.
To prevail on a claim of prosecutorial misconduct in a habeas action, a petitioner

5

must show that the comments “‘so infected the trial with unfairness as to make the

6

resulting conviction a denial of due process.’“ Darden v. Wainwright, 477 U.S. 168, 181

7

(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); Greer v. Miller,

8

483 U.S. 756, 765 (1987). A challenged statement by the prosecutor must be evaluated

9

in the context of the entire trial, as well as the context in which it was made. See Boyde

10

v. California, 494 U.S. 370, 384–85 (1990). Misstatements of the law by prosecutors in

11

closing argument “are not to be judged as having the same force as an instruction from

12

the court.” Allen v. Woodford, 395 F.3d 979, 1010 (9th Cir. 2005) (quoting Boyde, 494

13

U.S. at 384–85). And, even if a prosecutor's conduct amounts to constitutional error,

14

habeas relief will be granted only if petitioner can establish that the alleged error “‘had a

15

substantial and injurious effect or influence in determining the jury's verdict.’“ Brecht, 507

16

U.S. at 638; see also Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.1995) (no prejudice

17

from prosecutorial misconduct because it could not have had a substantial impact on the

18

verdict under Brecht).

19

In this court’s view, the comments at issue were more confusing than misleading.

20

It must be presumed that the jury placed more emphasis on the court’s jury instructions

21

than it did on the prosecutor’s somewhat-rambling argument. See Weeks v. Angelone,

22

528 U.S. 225, 234 (2000). In addition to the reasonable doubt instruction excerpted

23

above, the jury was also instructed that, regardless of what counsel may say in

24

argument, the jury’s deliberations were to be governed by the evidence presented and

25

the law as presented in the court’s instructions. ECF No. 15-22, p. 50.

26
27
28
10

1

Under the circumstances presented here, the Nevada Supreme Court’s

2

conclusion that the prosecutor’s argument, while improper, was cured by the trial court’s

3

reasonable doubt instruction was not contrary to or an unreasonable application of

4

federal law. Moreover, any prosecutorial misconduct did not have a significant impact on

5

the jury’s verdicts in light of the unrefuted evidence that Escobar shot Sanchez and

6

Arreguin and the wealth of evidence that he was not acting in self-defense or in defense

7

of others. Accordingly, Escobar is not entitled to relief on this claim.

8

Ground Eight is denied.
Ground Nine

9
10

In Ground Nine, Escobar claims his conviction and sentence violated his

11

constitutional rights because he offered evidence at trial that he acted in self-defense

12

and the State did not prove beyond a reasonable doubt that he did not act in self-

13

defense or in defense of others. In support of the claim, Escobar alleges that the State’s

14

witnesses gave conflicting testimony with respect to the shooting, while his own

15

testimony showing self-defense was consistent with much of the testimony of the State’s

16

witnesses.

17
18
19

Escobar presented this claim to the Nevada Supreme Court on direct appeal.
ECF No. 16-10, p. 23-28. The Nevada Supreme Court addressed the claim as follows:
Escobar contends that the State failed to meet its burden of proving
that Escobar did not act in self-defense or in the defense of others.

20
21
22

The standard of review for sufficiency of the evidence is “whether
the jury, acting reasonably, could have been convinced of the defendant’s
guilt beyond a reasonable doubt.” Kazalyn v. State, 108 Nev. 67, 70, 825
P.2d 578, 581 (1992). Where there is sufficient evidence in the record to
support the verdict, it will not be overturned on appeal. Id.

23
24
25
26
27
28

Here, several witnesses testified that Escobar chased and shot at
Sanchez, and that Sanchez was unarmed. Physical evidence at the crime
scene further supports the jury’s findings, including the pattern of the shell
casings on the ground and evidence that the shell casings had all been
fired from the gun used by Escobar. Although the evidence on the question
of self-defense was in conflict, it was up to the jury to weigh the credibility
of the witnesses and the probative value of their testimony. See Stewart v.
State, 94 Nev. 378, 379, 580 P.2d 473, 473 (1978) (citing Hankins v. State,
91 Nev. 477, 530 P.2d 167, 168 (1975)). Accordingly, we conclude that
there is sufficient evidence to support Escobar’s conviction.
11

1
2

ECF No. 16-15, p. 2-3.
The state court record supports each of the factual determinations by the Nevada

3

Supreme Court. Specifically, four eyewitnesses (Rocky Perez, Cruz, Sanchez, and Jorge

4

Gomez) each testified that Escobar shot at and/or chased Sanchez, who was unarmed.

5

ECF No.12-18, p. 71-72; ECF No. 15-14, p. 23-25, 66-68; ECF No. 15-16, p. 80-83.

6

None of these witnesses (or any witness other than Escobar) testified to facts indicating

7

that Escobar shot at Sanchez to protect himself or others from bodily harm. Brent

8

Becker, a homicide detective who processed the crime scene, testified that all the spent

9

shell casings found at scene were nine millimeter. ECF No. 15-16, p. 22-27. Torrey

10

Johnson, a police firearms analyst, testified that all the casings were fired from the same

11

Glock semiautomatic pistol (i.e., the gun used by Escobar). ECF No. 15-17, p. 69-71.

12

Thus, it cannot be said that the Nevada Supreme Court’s decision was based on an

13

unreasonable determination of the facts for the purposes of § 2254(d)(2).

14

In addition, the decision was not “contrary to” clearly established U.S. Supreme

15

Court precedent. The “rational factfinder” standard established in Jackson v. Virginia,

16

443 U.S. 307, 319 (1979), is the federal law standard to test whether sufficient evidence

17

supports a state conviction. See Mikes v. Borg, 947 F.2d 353, 356 (9th Cir. 1991). Under

18

that standard, the court inquires as to “whether, after viewing the evidence in the light

19

most favorable to the prosecution, any rational trier of fact could have found the

20

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319

21

(citation omitted). While the Nevada Supreme Court cited to state case law in deciding

22

Escobar’s sufficiency of evidence claim, neither the reasoning nor the result of its

23

decision contradicts Jackson or any other Supreme Court case. See Early v. Packer,

24

537 U.S. 3, 8, (2002) (holding that state decision does not require citation (or even

25

awareness) of U.S. Supreme Court cases to avoid the “contrary to” clause of

26

§ 2254(d)(1), “so long as neither the reasoning nor the result of the state-court decision

27

contradicts them.”).

28
12

1

And because this court must review the Nevada Supreme Court’s sufficiency of

2

evidence determination under AEDPA, “there is a double dose of deference that can

3

rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). That means

4

that even if this court “think[s] the state court made a mistake,” the petitioner is not

5

entitled to habeas relief unless the state court's application of the Jackson standard was

6

“‘objectively unreasonable.’” Id.

7

This court cannot conclude that the state court determination was unreasonable.

8

There was sufficient evidence from which a rational trier could find beyond a reasonable

9

doubt that Escobar did not act in self-defense or in defense of others when he shot

10
11

Sanchez and Arreguin.
Ground Nine is denied.
Grounds Three, Six, and Ten

12
13

Grounds Three, Six, and Ten are all claims that Escobar was deprived of effective

14

assistance of counsel, in violation of his rights under the Sixth and Fourteenth

15

Amendments. As noted above, these claims are procedurally defaulted. Escobar argues,

16

however, that the defaults should be excused based on the holding in Martinez v. Ryan,

17

566 U.S. 1 (2012). Under Martinez, a petitioner may establish cause for the procedural

18

default of an ineffective assistance of trial counsel claim “by demonstrating two things:

19

(1) ‘counsel in the initial review collateral proceeding, where the claim should have been

20

raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668

21

(1984),’ and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a

22

substantial one, which is to say that the prisoner must demonstrate that the claim has

23

some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566

24

U.S. at 14).

25

To establish a claim of ineffective assistance of counsel (IAC) under Strickland, a

26

petitioner must show that (1) “counsel made errors so serious that counsel was not

27

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,” and (2)

28

counsel's errors “deprive[d] the defendant of a fair trial, a trial whose result is reliable.”
13

1

Id. at 687. Under the first Strickland prong, whether an attorney's performance was

2

deficient is judged against an objective standard of reasonableness. Id. at 687-88.

3

Under the second prong, a petitioner must “show that there is a reasonable probability

4

that, but for counsel's unprofessional errors, the result of the proceeding would have

5

been different.” Id. at 694.

6

In Ground Three, Escobar claims his trial counsel were ineffective because they

7

failed to retain an expert to rebut the State’s argument that the number of shots he fired

8

during the incident proved that he acted with premeditation and deliberation. He alleges

9

that a qualified expert could have explained to the jury that, due to the heated state of

10

affairs immediately prior to the shooting, Escobar did not have the ability to deliberate his

11

actions. He further alleges that, in all likelihood, he suffered from post-traumatic stress

12

disorder (PTSD) due to his tumultuous and violent upbringing in El Salvador during a

13

civil war. He proffers the opinion of a neuropsychologist, Jonathan Mack, Psy.D., to

14

support his claim. ECF No. 17-41.
Ground Three is without merit. Dr. Mack’s opinion as to Escobar’s lack of intent is

15
16

premised on the theory that Escobar actions were a “highly reactive” and “impulsive”

17

response to being confronted by “opposing gang members.” ECF No. 17-41, p. 6. The

18

problem with that theory is the record shows that Escobar was primarily responsible for

19

the “heated state of affairs.” That is, aside from Escobar’s self-serving testimony, the

20

evidence shows that Escobar started the argument with Sanchez or that it was mutual,

21

and that Escobar was one who escalated the argument into actual violence by shooting

22

at Sanchez, who was unarmed. ECF No.12-18, p. 70-72; ECF No. 15-14, p. 23-25, 65-

23

68; ECF No. 15-16, p. 80-83. There is no evidence that any of Sanchez’s associates

24

confronted or threatened Escobar. In addition, Escobar admitted in his testimony at trial

25

that he intended to kill Sanchez when he shot at him numerous times. ECF No. 15-19, p.

26

30.

27
28
14

In Ground Six, Escobar claims his trial counsel were ineffective because they

1
2

failed to move for the exclusion of Rocky Perez’s preliminary hearing testimony once it

3

was discovered that it was inherently unreliable.
In a voluntary statement given to the police a little over a month after the incident,

4
5

Perez stated that, during the argument between Escobar and Sanchez, Sanchez pulled

6

out his gun, at which point Escobar grabbed the gun from Cruz’s waistband and began

7

firing. ECF No. 17-44, p. 8-12. At Escobar’s preliminary hearing a year and half later,

8

Perez testified that, on the night of the incident, Escobar and Wilfredo Sanchez began

9

arguing and Sanchez yelled out for his “homies” to get out of the van and that someone

10

in the van showed a gun, at which point Escobar “pulled the gun and started firing.” ECF

11

No. 12-18, p. 71. He further testified that, after shooting at Sanchez, Escobar went over

12

to the van and shot Arreguin, who was unarmed. Id., p. 72. Later in his testimony, he

13

clarified that the gun in the van had nothing to do with the shooting and it was not being

14

pointed at anyone. Id., p. 105. He also denied that Sanchez ever had a gun. Id., p. 94.

15

Several months prior to trial, defense counsel learned that the State considered

16

Rocky Perez an unavailable witness. Counsel filed a motion to preclude the State from

17

introducing Perez’s preliminary hearing testimony at trial without holding a hearing to

18

determine whether he was truly unavailable. 5 ECF No. 14-10. During Escobar’s trial, the

19

court canvassed Perez outside the presence of the jury to determine whether he would

20

refuse to testify even if ordered by the court. ECF No. 15-14, p. 97-112. The court

21

subsequently found Perez to be an unavailable witness and allowed his prior testimony

22

to be read to the jury. Id., p. 112.

23

At one point during the canvass, the following exchange occurred:

24

Prosecutor: Mr. Perez, did you tell the truth back on May 23rd,
1997, when you first testified for the State? Did you tell the truth back then?

25
Perez: Not really.
26
27
28

5

Nev. Rev. Stat. § 171.198 allows for the presentation of prior recorded testimony by the state where the
defendant was represented by counsel and “the witness is sick, out of the State, dead, or persistent in
refusing to testify despite an order of the judge to do so, or when his personal attendance cannot be had in
court.”

15

1
2

Prosecutor: Not really. You were under oath back then are you
saying that you lied back there? Did you testify that Carlos Escobar shot
Daniel Arreguin?

3
Perez: I say that, yeah, he shot –
4
The Court: [Defense counsel].
5
6
7
8
9

Defense counsel: Your Honor, I think we’re in a difficult position.
[The prosecutor’s] questions to him under oath would amount to him
admitting that he committed the crime of perjury, I’m not sure this is real
appropriate.
Id., p. 109. The prosecutor posed no further questions to Perez. Id.
Escobar claims that effective counsel would have moved for exclusion of Perez’s

10

testimony on the ground that Perez admitted that it was not truthful. He further claims

11

that effective counsel would not have interrupted as the prosecutor began to delve into

12

Perez’s untruthfulness. In the alternative, Escobar claims that effective counsel would

13

have asked the court to instruct the jury that Perez admitted his testimony was not

14

truthful.

15

The Sixth Amendment guarantees the right of an accused in a criminal

16

prosecution "to be confronted with the witnesses against him." U.S. Const. amend. VI.

17

Because Escobar’s conviction became final prior to Crawford v. Washington, 541 U.S.

18

36 (2004), the applicable standard for this claim is set forth in Ohio v. Roberts, 448 U.S.

19

56, 66 (1980). See Whorton v. Bockting, 549 U.S. 406, 421 (2007). In Roberts, the Court

20

held that the admission of hearsay statements against a criminal defendant is

21

constitutionally permissible so long as the speaker is unavailable and the statements

22

bear adequate indicia of reliability, either falling within a "firmly rooted hearsay

23

exception" or containing "particularized guarantees of trustworthiness.” 448 U.S. at 66.

24

The Roberts Court concluded that the witness’s prior testimony at a preliminary

25

hearing bore sufficient “indicia of reliability” given that defense counsel’s questioning of

26

the witness comported with the form and purpose of cross-examination. Id. at 70-71.

27
28
16

1

With respect of the unavailability of the witness, the Court held “the ultimate question is

2

whether the witness is unavailable despite good-faith efforts undertaken prior to trial to

3

locate and present that witness.” Id. at 74-75.

4

Here, as in Roberts, defense counsel at the preliminary hearing engaged in a

5

significant cross examination that was “replete with leading questions” and challenged

6

whether Perez was “sincerely telling what he believed to be the truth.” ECF No. 12-18, p.

7

84-99, 105-08. See Roberts, 448 U.S. at 70-71. Also, the record amply supports the trial

8

court’s finding as to Perez’s unwillingness to testify irrespective of any court order to do

9

so. ECF No. 15-14, p. 97-112. Refusal to testify under such circumstances is a well-

10

established ground for unavailability under both Nevada evidence law, Nev. Rev. Stat.

11

§ 51.055, and under the Federal Rules of Evidence, Fed. R. Evid. 804(a)(2).

12

Against this backdrop, this court is unable to discern how Escobar’s counsel could

13

have prevailed upon the trial court to exclude Perez’s preliminary hearing testimony.

14

Escobar points to no grounds, other than the Confrontation Clause, upon which to

15

exclude the testimony. Moreover, Perez’s admission as to the untruthfulness of the

16

testimony was vague and did not identify which part was inaccurate. See Zapien v.

17

Davis, 849 F.3d 787, 793-94 (9th Cir. 2015) (admission of petitioner’s sister’s preliminary

18

hearing testimony did not violate petitioner’s right to confrontation, even though

19

government knew that sister had told lies during other parts of her preliminary hearing

20

testimony, where sister refused to testify at trial, and preliminary hearing testimony fell

21

within heartland of those statements deemed reliable under Ohio v. Roberts, 448 U.S.

22

56 (1980)).

23

In addition, it appears from the record that defense counsel made a reasoned

24

decision to not oppose the admission of the preliminary hearing transcript once it was

25

decided that Perez met the criteria for finding him unavailable. Clearly, counsel’s

26

preference was for Perez to testify in person at trial. ECF No. 15-14, p. 108-09. Barring

27

that, however, counsel preferred admission of the preliminary transcript in lieu of no

28
17

1

testimony whatsoever, provided that the entire transcript (including cross-examination)

2

was presented. Id., p. 111.

3

Other than Escobar’s own testimony, Perez’s preliminary hearing testimony was

4

the only testimony from an eyewitness that was even remotely helpful to Escobar’s

5

defense. In addition to the testimony recounted above, Perez admitted on cross-

6

examination that he had initially told the police that Sanchez pulled a gun on Escobar.

7

ECF No. 12-18, p. 92-94. Moreover, defense counsel effectively challenged Perez’s

8

credibility in the preliminary hearing testimony that was read to the jury. Perez’s

9

testimony did not include any particularly damaging information that was not presented

10
11
12
13

through the other eyewitnesses.
Based on the foregoing, Escobar’s counsel was not ineffective by failing to move
for the exclusion of Perez’s preliminary testimony.
In Ground Ten, Escobar claims counsel were ineffective by not investigating

14

witnesses “who could have shed further light on what actually happened the night in

15

question, e.g., Vickie Jo Sanchez, Rosa Perez and Christina Sandoval.” ECF No. 11, p.

16

50. According to Escobar, Rosa Perez, Rocky’s mother, was standing nearby when the

17

events occurred and Christina Sandoval, who helped Carlos Cruz file a bogus police

18

report about his gun being stolen, could have discredited Cruz’s testimony.

19

Vickie Jo Sanchez testified at Escobar’s trial. ECF No. 15-14, p. 84-96. Her

20

testimony included the following information. She was awoken by the sounds of

21

gunshots on the night of September 28, 1995. Id., p. 88. Before looking outside, she

22

checked on her three children and called 911. Id., p. 88-89. When she did look outside,

23

she saw people getting out of a van, with at least one person with a gun in his hand. Id.

24

She saw that person, who was injured, hand the gun to Rocky Perez. Id. p. 92, 94-95.

25

It is apparent from Sanchez’s testimony that she did not see the shooting and that

26

Escobar and Carlos Cruz had already left the scene by the time she looked outside.

27

Based on other testimony presented at trial, the injured person she saw handing a gun

28

to Rocky Perez was Jorge Gomez. ECF No. 15-16, p. 87-94. Escobar does not specify
18

1

or even suggest how defense counsel’s failure to investigate Vickie Sanchez adversely

2

impacted the defense’s case.

3

Similarly, he does not indicate what information or testimony Rosa Perez could

4

have provided to assist the defense. As for using Sandoval to impeach the testimony of

5

Carlos Cruz, Cruz himself admitted on direct examination that he lied to police about his

6

gun being stolen. ECF No. 15-14, p. 26-27. Escobar cites to no other facts the defense

7

could have elicited from Sandoval to impeach Cruz’s testimony. In addition, he does not

8

identify any other witnesses counsel should have investigated.

9

In summary, none of Escobar’s IAC claims provide grounds for granting habeas

10

relief in this case. Thus, even if the default of any of the claims might be excused under

11

Martinez, the claims fail on the merits.

12

IV. CONCLUSION

13

For the reasons set forth above, Escobar is not entitled to habeas relief.

14

Certificate of Appealability

15

Because this is a final order adverse to the petitioner, Rule 11 of the Rules

16

Governing Section 2254 Cases requires this court to issue or deny a certificate of

17

appealability (COA). Accordingly, the court has sua sponte evaluated the claims within

18

the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.

19

Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).

20

Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner

21

"has made a substantial showing of the denial of a constitutional right." With respect to

22

claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists

23

would find the district court's assessment of the constitutional claims debatable or

24

wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S.

25

880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists

26

could debate (1) whether the petition states a valid claim of the denial of a constitutional

27

right and (2) whether the court's procedural ruling was correct. Id.

28
19

1

The COA standard is not high. Escobar must only “‘sho[w] that reasonable jurists

2

could debate’” the district court's resolution or that the issues are “‘adequate to deserve

3

encouragement to proceed further.’” Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir.

4

2010) (en banc) (citations omitted). Having reviewed its determinations and rulings in

5

adjudicating Escobar’s petition, the court concludes that the Slack standard is met with

6

respect to the court’s resolution of Ground Eight – Escobar’s claim that his constitutional

7

rights were violated because the reasonable doubt instruction issued by the court

8

combined with the prosecutor’s comments in closing argument improperly minimized the

9

State’s burden of proof.

10

The court therefore grants a COA as to that issue. The court declines to issue a

11

COA for its resolution of any procedural issues or any of Escobar’s other habeas claims.

12

IT IS THEREFORE ORDERED that petitioner's amended petition for writ of

13
14
15
16
17

habeas corpus (ECF No. 11) is DENIED. The Clerk shall enter judgment accordingly.
IT IS FURTHER ORDERED that a certificate of appealability is granted as to the
following issue:
Whether this court erred in deciding that Escobar is not entitled to
habeas relief based on his claim that the reasonable doubt instruction
issued by the court combined with the prosecutor’s comments in closing
argument improperly minimized the State’s burden of proof.

18
19
20

A COA is otherwise denied.
DATED July 10, 2018.

21
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
20