Jimenez v. Williams et al

Filing 34

ORDER that the petition for a writ of habeas corpus is DENIED on the merits and that this matter shall be DISMISSED with prejudice. FURTHER ORDERED that a certificate of appealability is DENIED, as jurists of reason would not find either the prior procedural holdings as to Grounds 2 and 3 or the dismissal herein of Ground 1 on the merits to be debatable or wrong, for the reasons assigned in the prior orders and herein. The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice. Signed by Judge Andrew P. Gordon on 7/16/2018., Case terminated. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRANCISCO JIMENEZ,

Case No. 2:14-cv-01916-APG-CWH
Petitioner,

vs.

ORDER

BRIAN E. WILLIAMS,

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Respondent.

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This habeas matter under 28 U.S.C. § 2254 comes before me for a decision on the merits on the
sole remaining ground.

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Background

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Petitioner Francisco Jimenez challenges his 2011 Nevada state conviction, pursuant to a guilty

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plea, on one count of conspiracy to commit robbery, two counts of robbery with the use of a deadly

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weapon, two counts of first-degree kidnapping, and one count of attempted murder with the use of a

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deadly weapon. ECF No. 14-19; Exhibit 19.

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In the single ground that remains, Jimenez alleges that he was denied effective assistance of

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counsel because defense counsel advised him to plead guilty to the two counts of first-degree

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kidnapping despite there allegedly being insufficient evidence to support a conviction for kidnapping

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under Nevada law. Jimenez contends that the evidence was insufficient under the standards outlined

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in Mendoza v. State, 122 Nev. 267, 130 P.3d 176 (2006), because the movement of the victims

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allegedly was incidental to robberies with the use of a deadly weapon. ECF No. 7, at 3-6.

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Jimenez unconditionally waived a preliminary hearing because he had reached a plea bargain

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with the State. ECF No. 14-2; Exhibit 2. The State therefore had no occasion to present any of the

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evidence that it had against Jimenez.

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Petitioner was appointed different counsel on a motion to withdraw his plea. Replacement

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counsel summarized the State’s evidence while alleging on Jimenez’ behalf that pre-plea counsel had

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coerced Jimenez into pleading guilty despite having told him previously that the evidence was

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insufficient on the kidnapping charges. ECF No. 14-15, at 4-5; Exhibit 15, at 3-4. Counsel repeated

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the factual summary on direct appeal, the State adopted the summary in its fast-track response, and the

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summary thus formed the uncontested factual backdrop for the decision of the state supreme court on

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direct appeal. ECF No. 14-21, at 8-9; Exhibit 21, at 7-8. ECF No. 14-22, at 5; Exhibit 22, at 4.

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Thereafter, Jimenez’ post-conviction counsel – in seeking to establish ineffective assistance of pre-plea

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counsel due to alleged insufficiency of the evidence on the kidnapping charges – provided a more

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detailed summary of the State’s evidence as reflected by the police reports and witness statements that

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then were available. ECF No. 14-26, at 4-7; Exhibit 26, at 3-6. Counsel repeated this more detailed

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summary almost in full on the post-conviction appeal. ECF No. 14-32, at 8-11; Exhibit 32, at 7-10.

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While the State did not adopt the factual recital, it did not challenge any of the specifics. See ECF No.

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14-33, at 6; Exhibit 33, at 5.1 As discussed further, infra, Jimenez’ summary of the State’s evidence

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formed the factual backdrop for the state supreme court’s decision on the merits of the claim. See ECF

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No. 14-34, at 3; Exhibit 34, at 2. On federal habeas review, Jimenez has not challenged the accuracy

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of summaries of the State’s evidence provided by his post-plea and post-conviction counsel that served

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as the factual backdrop for the decisions of the state courts.

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Petitioner’s summary reflected that the State would have presented evidence at a trial tending
to establish the following with respect to the criminal episodes.2

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On the evening of January 4, 2007, five Hispanic males entered a Quick Stop convenience store.

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Two of the males went to the counter ostensibly to purchase some beer. The two men then drew

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handguns and forced the employees at the counter to the floor. Another one of the males then walked

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The State’s fast track response stated: “As Jimenez’s conviction was the result of a guilty
plea, the relevant facts are adduced above in the Statement of the Case.”
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The Court makes no credibility findings or other factual findings regarding the truth or
falsity of evidence or statements of fact in the state court. The Court summarizes same solely as
background to the issues presented in this case, and it does not summarize all such material. No
statement of fact made in describing statements, testimony or other evidence in the state court
constitutes a finding by this Court. Any absence of mention of a specific piece of evidence or
category of evidence in this overview does not signify that the Court has overlooked the evidence in
considering petitioner's claims.
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around the counter and bound the employees with zip ties. Meanwhile, another one of the males had

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been watching the door. He would “contact” customers as they entered the door by placing a handgun

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in their back and forcing them to the furthest aisle away from the door. Another male then would bind

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the customers with zip ties. ECF No. 14-32, at 8-9; Exhibit 32, at 7-8.

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A second incident at an American Mini Market convenience store the next evening followed

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much the same pattern, although the summary description provided more detail. Five to possibly six

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Hispanic males entered the store and split up, with one male – believed by the police to be Jimenez –

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remaining by the door. Three employees were in the store. They were cashier Abraham Marquez, Luis

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Alvarado in the meat market, and Anjelica Alvarado at the main cash register. Two suspects robbed

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Luis Alvarado at gunpoint, and multiple suspects robbed Anjelica Alvarado also at gunpoint. The men

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escorted employees and customers at gunpoint into a back room of the store, made them lie down, and

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tied them up with zip ties. They did not bind Abraham Marquez and Anjelica Alvarado, however,

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apparently in the latter case because she was pregnant. ECF No. 14-32, at 9-11; Exhibit 32, at 8-10.

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Similar to the other incident, the male by the door would escort any additional customers that
came into the store to the back room at gunpoint. ECF No. 14-32, at 10; Exhibit 32, at 9.

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Customer Abel Mata stated that he entered the American Mini Market to cash his paycheck. As

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he entered, one of the males pointed a gun at him, escorted him to the back room, and told him to lie

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down. Once he was on the floor, another male zip-tied his hands and feet. ECF No. 14-32, at 10-11;

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Exhibit 32, at 9-10.

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The American Mini Market incident did not end well. Abraham Marquez shot two of the

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accomplices, mortally wounding Jesus Galindo Nunez. The police subsequently found Moises Araujo-

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Amaya a short distance from the store with a bullet wound in his buttocks. Araujo-Amaya told officers

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that he and the same accomplices from the American Mini Market incident, including Jimenez, had

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robbed the Quick Stop the evening before. Abraham Marquez sustained a grazing shot to his left

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shoulder. ECF No. 14-21, at 8-9; Exhibit 21, at 7-8. ECF No. 14-26, at 7; Exhibit 26, at 6.3

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The testimony and argument from the state court evidentiary hearing further reflected that:
(continued...)
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The factual recitals in the state courts did not reflect that any of the customers who were moved
to less visible locations within the stores at gunpoint and then bound were robbed.

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Prior to his guilty plea, Jimenez was charged – as a principal, aider and abettor, and/or

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coconspirator – with a total of eighteen offenses. ECF No. 14-1; Exhibit 1. ECF No. 14-2, at 5; Exhibit

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2, at 5.

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The charged offenses included one count of conspiracy to commit three robberies as charged

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with respect to the Quick Stop and American Mini Market incidents. Count 1 in ECF No. 14-1; Exhibit

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With regard to the Quick Stop incident, Jimenez was charged with: (1) one count of burglary

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while in possession of a firearm; (2) two counts of robbery with the use of a deadly weapon for robberies

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respectively of Faris Yalda and Alma Luyon; and (3) four counts of first-degree kidnapping with the use

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of a deadly weapon for kidnappings respectively of Faris Yalda, Alma Luyon, Tomas Leon, and Martin

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Little. Counts 2 through 8 in ECF No. 14-1; Exhibit 1. No robberies were alleged as to Tomas Leon and

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Martin Little, and they thus appeared to be customers who were moved and bound during the incident

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rather than employees who were robbed.

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With regard to the American Mini Market incident, Jimenez was charged with: (1) one count of

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burglary while in possession of a firearm; (2) one count of robbery with the use of a deadly weapon for

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a robbery of Abraham Marquez; (3) seven counts of first-degree kidnapping with the use of a deadly

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weapon for kidnappings respectively of Abraham Marquez, Luis Alvarado, Angelica Alvarado, Ana

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Marquz, Abel Mata, Bobby Klepper and Kevin Aden; and (4) one count of attempted murder with the

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use of a deadly weapon for an attempted murder of Abraham Marquez. Counts 9 through 18 in ECF No.

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14-1; Exhibit 1. The only robbery charged for the American Mini Market incident was a robbery of

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store employee Abraham Marquez. Luis Alvarado and Angelica Alvarado also were store employees.

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(...continued)
(1) the offenses were recorded on clear surveillance video showing every accomplice, including
Jimenez; (2) Jimenez’ other surviving accomplices also had implicated him in their statements; and
(3) Jimenez had confessed on video to his involvement as the lookout manning the door with a gun
and escorting employees and customers to a less visible location in the stores. ECF No. 14-28, at 68, 17-19, 27-30, 34, 37 & 44-48; Exhibit 28, at 7-9, 18-20, 28-31, 35, 38 & 45-49.
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Abel Mata was not.
Prior to his plea, Jimenez faced extensive sentencing exposure on the eighteen counts with which
he was charged under the law applicable to the January 2007 offenses.

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At the outset, over and above the exposure on the underlying primary offenses on the robbery,

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first-degree kidnapping, and attempted murder charges, he faced exposure as well to a weapon

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enhancement carrying an additional consecutive sentence equal to the sentence imposed for the primary

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offense. See N.R.S. 193.165, as amended through 1995 Laws, ch. 624, § 1, at p. 1431.

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Together with the consecutive weapon enhancement sentences on those charges under the

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foregoing provision, Jimenez faced possible sentencing to: (1) 1 to 6 years on the conspiracy to commit

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robbery count, pursuant to N.R.S. 199.480, as amended through 1999 Laws, ch. 320, § 1, at p. 1343; (2)

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2 to 15 years on each one of the two counts of burglary while in possession of a firearm, pursuant to

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N.R.S. 205.060(4), as amended through 2005 Laws, ch. 126, § 1, at p. 416; (3) 2 to 15 years, along with

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an equal consecutive sentence, on each one of the three counts of robbery with the use of a deadly

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weapon, pursuant to N.R.S. 200.380; (4) life with the possibility of parole after 5 years or a definite term

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of 15 years with the possibility of parole after 5 years, along with an equal consecutive sentence, on each

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one of the eleven counts of first-degree kidnapping with the use of a deadly weapon, pursuant to N.R.S.

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200.320; and (5) 2 to 20 years, along with an equal consecutive sentence, on the attempted murder with

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the use of a deadly weapon count, pursuant to N.R.S. 193.330(1)(a)(1), as amended through 1997 Laws,

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ch. 314, § 2, at pp. 1178-79.

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Jimenez therefore faced a maximum possible sentencing exposure on the eighteen counts of

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consecutive determinate sentences totaling 146 years in turn further consecutive to 22 consecutive life

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sentences with parole eligibility after 5 years on each life sentence. If Jimenez had been convicted on

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all 11 counts of first-degree kidnapping with the use of a deadly weapon and sentenced as above, he

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would have had to serve 110 years on those counts alone before eligibility for a parole outside of prison

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walls, subject also to the determinate sentences on the remaining counts. Even as a young man, Jimenez

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thus faced a substantial risk of being imprisoned for the rest of his life on the charges pending prior to

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his plea.

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Jimenez pled guilty instead to one count of conspiracy to commit robbery, two counts of robbery
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with the use of a deadly weapon, two counts of first-degree kidnapping, and one count of attempted

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murder with the use of a deadly weapon. ECF No. 14-19; Exhibit 19.

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He thus reduced his exposure to sentencing on: (1) two counts of robbery with the use of a deadly

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weapon rather than three such counts; and (2) only two counts of first-degree kidnapping – with no

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weapon enhancement – rather than eleven counts of first-degree kidnapping with the use of a deadly

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weapon. Moreover, the parties stipulated that only the sentences on the two counts of robbery with the

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use of a deadly weapon would run consecutively and that the sentences on the other counts would run

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concurrently with the robbery with use counts and with each other. Further, the State agreed that it

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would not argue for more than 25 years on the top end on the robbery with use counts. ECF No. 14-8,

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at 2-3 & 10-12; Exhibit 8, at 1-2 and exhibit thereto.

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In the information to which Jimenez entered a guilty plea, inter alia: (1) the prior four counts of

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first-degree kidnapping with the use of a deadly weapon during the Quick Stop incident essentially were

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collapsed into a single count charging Jimenez with the first-degree kidnapping, without a weapon

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enhancement, of Faris Yald and/or Alma Luyon and/or Thomas Leon and/or Martin Little; and (2) the

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prior seven counts of first-degree kidnapping with the use of a deadly weapon during the American Mini

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Mart incident similarly essentially were collapsed into a single count charging Jimenez with the first-

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degree kidnapping, without a weapon enhancement, of Abraham Marquez and/or Luis Alvarado and/or

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Angelica Alvarado and/or Ana Marquez and/or Abel Mata and/or Bobby Klepper and/or Kevin Aden.

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ECF No. 14-8, at 10-12; Exhibit 8, exhibit thereto.4 Jimenez thus was charged in each such first-degree

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kidnapping count with kidnapping persons who the coconspirators were not alleged to have robbed,

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including customers such as Abel Mata.

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During the plea colloquy, Jimenez specifically admitted, inter alia, on the one count that he

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kidnapped Faris Yald and/or Alma Luyon and/or Thomas Leon and/or Martin Little and on the other that

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he kidnapped Abraham Marquez and/or Luis Alvarado and/or Angelica Alvarado and/or Ana Marquez

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and/or Abel Mata and/or Bobby Klepper and/or Kevin Aden. The district court judge substantially

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The two robbery with use counts from the Quick Stop incident similarly essentially were
collapsed into a single count alleging robbery with the use of a deadly weapon of Faris Yalda and/or
Alma Luyon. ECF No. 14-8, at 10; Exhibit 8, exhibit thereto.
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tracked the language of the information on each count and then asked Jimenez whether he had

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committed those acts. He affirmed that he did. ECF No. 14-10, at 8-9; Exhibit 10, at 7-8.

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Jimenez was sentenced on each count of robbery with the use of a deadly weapon to consecutive

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sentences of 28 to 150 months, or 56 to 300 months on each consecutive count. The sentences on the

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remaining charges, including the two counts of first-degree kidnapping, were imposed concurrently with

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the sentences on, respectively, one or the other robbery with use counts. The minimum sentences on

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the two first-degree kidnapping counts and on the one attempted murder with the use of a deadly weapon

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count ran several months longer than the minimum combined sentence on a count of robbery with the

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use of a deadly weapon. However, the longest top end sentences imposed in the judgment of conviction

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were on the robbery with use counts. ECF No. 14-19; Exhibit 19.
Jimenez challenged the conviction via motions to withdraw guilty plea, on direct appeal, and via
a state post-conviction petition.
Governing Law

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When the state courts have adjudicated a claim on the merits, the Antiterrorism and Effective

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Death Penalty Act (AEDPA) imposes a “highly deferential” standard for evaluating the state court ruling

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that is “difficult to meet” and “which demands that state-court decisions be given the benefit of the

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doubt.” Cullen v. Pinholster, 563 U.S. 170 (2011). Under this deferential standard of review, a federal

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court may not grant relief merely because it might conclude that the decision was incorrect. 563 U.S.

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at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision:

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(1) was either contrary to or involved an unreasonable application of clearly established law as

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determined by the United States Supreme Court; or (2) was based on an unreasonable determination of

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the facts in light of the evidence presented at the state court proceeding. 563 U.S. at 181-88.

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A state court decision is “contrary to” law clearly established by the Supreme Court only if it

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applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision

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confronts a set of facts that are materially indistinguishable from a Supreme Court decision and

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nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state

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court decision is not contrary to established federal law merely because it does not cite the Supreme

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Court’s opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of
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its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id.

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Moreover, “[a] federal court may not overrule a state court for simply holding a view different from its

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own, when the precedent from [the Supreme] Court is, at best, ambiguous.” 540 U.S. at 16. For, at

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bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is

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not contrary to clearly established federal law.

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A state court decision constitutes an “unreasonable application” of clearly established federal

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law only if it is demonstrated that the state court’s application of Supreme Court precedent to the facts

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of the case was not only incorrect but “objectively unreasonable.” E.g., Mitchell, 540 U.S. at 18; Davis

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v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).

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“A state court's determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Harrington v.

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Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The state

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court decision must be “so lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded disagreement.” White v.

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Woodall,134 S.Ct. 1697, 1702 (2014)(internal quotation marks omitted).

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When a state court’s factual findings are challenged, the “unreasonable determination of fact”

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clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943,

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972 (9th Cir. 2004). This clause requires that the federal courts “must be particularly deferential” to state

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court factual determinations. Id. The governing standard is not satisfied by a showing merely that the

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state court finding was “clearly erroneous.” 393 F.3d at 973.

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Rather, AEDPA requires substantially more deference:
. . . . [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that we
would reverse in similar circumstances if this were an appeal from a
district court decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless
rebutted by clear and convincing evidence.
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In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court held that the two-pronged test of

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Strickland v. Washington, 466 U.S. 668 (1984), applies to a challenge to a guilty plea based on

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ineffective assistance of counsel. 474 U.S. at 58. A petitioner seeking to set aside a plea due to

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ineffective assistance must demonstrate that: (1) counsel's performance fell below an objective standard

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of reasonableness; and (2) the defective performance resulted in actual prejudice. 474 U.S. at 58-59.

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On the performance prong, the question is not what counsel might have done differently but

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rather is whether counsel's decisions were reasonable from counsel's perspective at the time. In this

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regard, the court starts from a strong presumption that counsel's conduct fell within the wide range of

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reasonable conduct. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).

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On the prejudice prong, as a general matter under Strickland, the petitioner must demonstrate

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a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would

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have been different. E.g., Beardslee, 327 F.3d at 807-08. Application of this general principle to the

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specific context of a guilty plea leads to the requirement that the petitioner "must show that there is a

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reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have

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insisted on going to trial." Hill, 474 U.S. at 59.

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Under Hill, a challenge to the voluntariness of a plea may be based upon a claim of ineffective
of assistance of counsel also in proceedings prior to the plea. As the Supreme Court observed:

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. . . . For example, where the alleged error of counsel is a failure
to investigate or discover potentially exculpatory evidence, the
determination whether the error "prejudiced" the defendant by causing
him to plead guilty rather than go to trial will depend on the likelihood
that discovery of the evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn, will depend in
large part on a prediction whether the evidence likely would have
changed the outcome of a trial. Similarly, where the alleged error of
counsel is a failure to advise the defendant of a potential affirmative
defense to the crime charged, the resolution of the "prejudice" inquiry
will depend largely on whether the affirmative defense likely would have
succeeded at trial. . . . . As we explained in Strickland v. Washington,
supra, these predictions of the outcome at a possible trial, where
necessary, should be made objectively, without regard for the
"idiosyncrasies of the particular decisionmaker." Id., 466 U.S., at 695,
104 S.Ct., at 2068.

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474 U.S. at 59-60. Thus, an error in failing to develop a meritorious defense may serve as a basis for

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overturning a plea and conviction if, viewed objectively, there is a reasonable probability that, but for

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the error, the petitioner would not have pled guilty and would have insisted on going to trial.

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While surmounting Strickland'’s high bar is "never an easy task," federal habeas review is

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"doubly deferential" in a case governed by the AEDPA. In such cases, the reviewing court must take

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a "highly deferential" look at counsel's performance through the also "highly deferential" lens of §

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2254(d). Pinholster, 563 U.S. at 190 & 202.

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The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled
to habeas relief. Id. at 569.
Discussion

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As noted previously, in the sole ground remaining, Ground 1, Jimenez alleges that he was denied

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effective assistance of counsel because defense counsel advised him to plead guilty to the two counts

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of first-degree kidnapping despite there allegedly being insufficient evidence to support a conviction for

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kidnapping under Nevada law because the movement of the victims allegedly was incidental to robberies

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with the use of a deadly weapon. ECF No. 7, at 3-6.

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Against the backdrop of Jimenez’ summary of the State’s evidence described previously herein,
the Supreme Court of Nevada rejected the claim presented to that court on the following grounds:
First, Jimenez contends that the district court erred by denying his
claim that counsel was ineffective for advising him to plead guilty to two
counts of first-degree kidnapping because there were no facts to support
the charges. To prove ineffective assistance of counsel sufficient to
invalidate a judgment of conviction based on a guilty plea, a petitioner
must demonstrate that counsel's performance was deficient in that it fell
below an objective standard of reasonableness, and resulting prejudice
such that there is a reasonable probability that, but for counsel's errors,
petitioner would not have pleaded guilty and would have insisted on
going to trial. Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Kirksey v.
State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996). We give deference
to the court's factual findings if supported by substantial evidence and not
clearly erroneous but review the court's application of the law to those
facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166
(2005).
The record reveals that Jimenez and several coconspirators
entered two convenience stores brandishing firearms, forced the
customers into the back, ordered them to lie down, and restrained them
using “zip-ties.” The group robbed the stores and shot at an employee as
they fled. Based upon these acts, Jimenez was charged with one count of
conspiracy to commit robbery, two counts of burglary while in possession
of a firearm, three counts of robbery with the use of a deadly weapon, one
count of first-degree kidnapping, eleven counts of first-degree kidnapping
with the use of a deadly weapon, and one count of attempted murder with
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the use of a deadly weapon. In exchange for the State's agreement to
dismiss a majority of the counts and deadly weapon enhancements,
Jimenez agreed to plead guilty to one count of conspiracy to commit
robbery, two counts of robbery with the use of a deadly weapon, two
counts of first-degree kidnapping, and one count of attempted murder.
The parties stipulated that only two of the counts would run
consecutively; moreover, Jimenez retained the right to argue for an
eight-year minimum term and the State retained the right to argue for a
twenty-five-year maximum term.

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The district court conducted an evidentiary hearing, wherein
Jimenez testified that counsel discussed the case with him and informed
him of possible defenses to the kidnapping charges, but advised him to
plead guilty to reduce his exposure at sentencing. After considering the
record and the testimony presented at the evidentiary hearing, the district
court concluded that counsel was not ineffective. We agree. Jimenez
fails to demonstrate that there were insufficient facts to support the
kidnapping charges, and even assuming otherwise, he fails to demonstrate
that it was unreasonable for counsel to advise him to plead guilty
pursuant to the agreement rather than proceed to trial against the original
charges. See Hill, 474 U.S. at 58–59. We conclude that the district court
did not err by denying this claim.

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ECF No. 14-34, at 2-4; Exhibit 34, at 1-3.
The state supreme court’s rejection of Jimenez’ ineffective-assistance claim was neither contrary
to nor an objectively unreasonable application of clearly established federal law.
At the outset, petitioner has not challenged on federal habeas review the state supreme court’s
description of the underlying evidence against Jimenez, which necessarily was premised upon the
detailed summary that Jimenez’ post-conviction counsel presented to the state courts. The state supreme
court’s summary accordingly is entitled to a presumption of correctness as reflecting the evidence that
would have been available to the State at trial.5
Moreover, the Supreme Court of Nevada is the final arbiter of Nevada state law. The court’s
implicit rejection of Jimenez’ state law premises as to how Mendoza v. State, 122 Nev. 267, 130 P.3d
176 (2006), and related state law authority should apply to the facts of his case is – to that extent –
unassailable on federal habeas review.
In all events, Jimenez’ reliance upon Mendoza and related Nevada case authority to establish the
insufficiency of the evidence on the facts presented under the federal law standard in Jackson v.

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See, e.g., Sims v. Brown, 425 F.3d 560, 563 n.1 (9th Cir. 2005).
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Virginia, 443 U.S. 307 (1979), is misplaced.
In Mendoza, the state supreme court clarified the relationship under Nevada law between
kidnapping and other offenses involving movement or restraint of a victim:
We now clarify that movement or restraint incidental to an
underlying offense where restraint or movement is inherent, as a general
matter, will not expose the defendant to dual criminal liability under
either the first- or second-degree kidnapping statutes. However, where
the movement or restraint serves to substantially increase the risk of harm
to the victim over and above that necessarily present in an associated
offense, i.e., robbery, extortion, battery resulting in substantial bodily
harm or sexual assault, or where the seizure, restraint or movement of the
victim substantially exceeds that required to complete the associated
crime charged, dual convictions under the kidnapping and robbery
statutes are proper.[FN19] Also, . . . dual culpability is permitted where
the movement, seizure or restraint stands alone with independent
significance from the underlying charge.
[FN19] This acknowledges that first-degree kidnapping
is not committed unless the underlying purpose is
robbery, extortion or sexual assault, infliction of
substantial bodily harm or murder. . . . .
122 Nev. at 274-75 & n.19, 130 P.3d at 180-81 & n.19.
The state high court outlined the facts in Mendoza earlier in the opinion and thereafter applied
the foregoing standards to those facts in the following manner:
Evidence at trial indicated that Mendoza and two cohorts entered
Mr. Canon's residence with guns, tied him up, looted the premises and
robbed other members of the Canon family. During these robberies, Mr.
Avalos, an employee of Mr. Canon, arrived at the residence to retrieve his
paycheck. The intruders seized Mr. Avalos, took him inside, severely
beat him, and took his keys and wallet. The criminal information filed in
the district court included individual charges of robbery with the use of
a deadly weapon of Mr. Canon and Mr. Avalos, and individual charges
of first-degree kidnapping with the use of a deadly weapon in connection
with those robberies. Ultimately, the jury convicted Mendoza of robbery
as to both Mr. Canon and Mr. Avalos, and convicted Mendoza of
kidnapping Mr. Avalos. It acquitted Mendoza on the kidnapping charges
concerning Mr. Canon.
.....
The evidence against Mendoza justified the district court's
instructions on both of the alleged kidnapping offenses. Interestingly, the
jury acquitted Mendoza of kidnapping Canon, the case in which physical
restraint was clearly shown. As to the kidnapping conviction involving
the seizure and restraint of Jose Avalos in Canon's residence, the seizure
and restraint resulted in increased danger and injury to Avalos, thus
falling within the purview of instruction 25 [which the state supreme
court found to not contain error]. In short, Avalos was seized, physically
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restrained, assaulted and then robbed.

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122 Nev. at 271 & 275, 130 P.3d at 178 & 181 (footnote omitted).

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Nevada cases applying the Mendoza line drawn by the state supreme court have upheld jury

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verdicts in contexts involving increased risk of harm to the victim resulting from moving a victim from

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a more public location into a more secluded one, from guarding the victim at gunpoint, and/or from

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movement or restraint that otherwise substantially exceeded the movement or restraint necessary to

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complete the robbery.6 Nevada appellate courts have applied the established rule that whether the

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movement or restraint of the victim is incidental to the associated offense and whether the risk of harm

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is substantially increased thereby are questions of fact to be determined by the trier of fact in all but the

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See, e.g., Guerrina v. State, 419 P.3d 705, 708 & 710-11 (Nev. 2018)(the defendant, inter
alia, accosted the victim outside a store and forced her to accompany him into the more secluded
store, where he demanded her wallet and cell phone); Hobson v. State, 2018 WL 2733965, No.
71419, at *1 & *4 (Nev., June 1, 2018)(unpublished)(in three restaurant robberies, the defendant
and/or his accomplice forced the employee victims to remain in, or return to, each restaurant and
then held them at gunpoint while the manager opened the safe); Stewart v. State, 393 P.3d 685, 686
& 688 (Nev. 2017)(the defendant and his accomplice accosted the victim as she was entering her
apartment, held her at gunpoint, forced her at gunpoint to allow them into the apartment, and made
her lie face down on the floor in the back bedroom and guarded her at gunpoint while they
ransacked her apartment); Estall v. State, 2016 WL 5400164, No. 67174, at *1 (Nev., Sept. 16,
2016)(unpublished)(the defendant and his accomplice attacked the victim as he turned to reenter his
home, forced him into the residence, covered his mouth and forced him to the floor, and moved him
at gunpoint to the garage where a safe was located); Hover v. State, 2016 WL 699871, No. 63888,
at *1 & *6 (Nev., Feb. 19, 2016)(unpublished)(the defendant moved the victim from the front door
of his residence to another bedroom where he was taped to a chair, in a situation where the
movement was not necessary to complete the robbery, which occurred instead in the kitchen);
Gonzales v. State, 354 P.3d 654, 656-57 & 664-66 (Nev. App. 2015)(the accomplices forced the
victim at gunpoint from an open garage visible to her neighbors into the house and thereafter moved
her from room to room despite her not knowing where her husband had stored his weapons, when
the robbery instead could have been accomplished simply by detaining her in the garage while they
searched the house); Pascua v. State, 122 Nev. 1001, 1003-06, 145 P.3d 1031, 1032-34 (Nev.
2006)(after robbing the victim of his wallet and obtaining the combination to his safe while in his
kitchen, the defendant and her accomplices dragged the victim from the kitchen to his bedroom and
restrained him on his bed, thereby, inter alia, lessening his chances of being seen by neighbors or
escaping). The Court notes that the issue here does not involve retroactive application of a statutory
change but instead is one of the Nevada appellate courts’ application of the 2006 Mendoza decision.
Precedents from subsequent to Jimenez’ 2010 plea thus constitute relevant authority, particularly as
the relevant cases from 2006 forward are consistent in their application of Nevada law.
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clearest of cases.7 In cases affirming convictions against challenges to the sufficiency of the evidence

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of kidnapping involving victim movement and/or restraint as described above, Nevada appellate courts

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have concluded that the factual pattern exhibited in the case did not present one of the clearest cases in

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which the jury’s verdict must be deemed unreasonable.8

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In the present case, during the Quick Stop incident, employees were forced at gunpoint to the

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floor, where they were less visible to the public, and then bound. Customers further were taken at

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gunpoint from the entry threshold of the store to the furthest aisle away from the door, where they too

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were less visible to the public, and where they also were bound. See text, supra, at 2-3. Neither the

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movement nor the restraint was necessary for the robbery itself. Jimenez and his accomplices simply

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could have displayed their weapons, directed the employee or employees at the cash register to give

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them the money, and left the store.

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During the American Mini Market incident, employees and customers were moved at gunpoint

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from more visible positions out in the customer service area of the store to the seclusion of a back room,

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were forced to the floor in that secluded area, and all but two of them were bound. Jimenez further

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escorted any new incoming customers at gunpoint from the publicly visible entry threshold to the

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seclusion of the same back room, where they similarly were bound. See text, supra, at 3. Once again,

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neither the movement nor the restraint was necessary for the robbery itself. Jimenez and his accomplices

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simply could have displayed their weapons, directed the employees at the cash registers to give them

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the money, and left the store.

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Based on the foregoing, a rational trier of fact, after viewing the evidence in the light most

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favorable to the prosecution, could find that the kidnappings were not merely incidental to the robbery

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or robberies under the standards outlined in Mendoza. A rational trier of fact could conclude in

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particular that the kidnappings created an increased risk of harm to the victims resulting from moving

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the victims from more public locations to more secluded ones, from guarding the victims at gunpoint,

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and from the fact that the movement and restraint otherwise substantially exceeded the movement or

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E.g., Guerrina, 419 P.3d at 710; Pascua, 122 Nev. at 1005 n.6, 145 P.3d at 1033 n.6.
E.g., Guerrina, 419 P.3d at 711.
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restraint necessary to complete the robberies. The new incoming customers accosted at the entry

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threshold of the stores, such as Abel Mata at the American Mini Market, in particular were much like

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the individual in Mendoza who was accosted at the doorway of the home and forced inside at gunpoint

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and restrained. A comparison between the underlying facts in the present case and the facts in Mendoza

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thus undercuts – rather than supports – Jimenez’ position in this case.9

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Moreover, in both incidents, Jimenez and his accomplices moved and bound multiple people,

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in particular customers, who were not themselves robbed and as to which no robbery charges were filed.

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Jimenez and his accomplices definitely substantially increased the risk of harm presented by their

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actions with each person “contacted,” moved out of public view at gunpoint to a more secluded area,

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and bound. Under petitioner’s apparent view of Mendoza, he and his accomplices could have moved

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or restrained an unlimited number of people – without any additional criminal culpability or sentencing

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exposure – so long as they were robbing someone at some point during the overall incident. Mendoza

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does not support such a result, and Jimenez cites no apposite post-Mendoza decision that makes a

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holding that supports such a result.

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Indeed, a conclusion under the Mendoza analysis that a kidnapping is incidental to a robbery

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does not necessarily lead to a conclusion that a kidnapping otherwise did not occur. Rather, the goal of

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the Mendoza analysis is to determine those situations where the state legislature could not have intended

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to impose a double punishment where a robbery and a kidnapping both in fact did occur, at least by the

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literal terms of the Nevada kidnapping statute. See Mendoza, 122 Nev. at 272-73, 130 P.3d at 179; see

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also Wright v. State, 94 Nev. 415, 416-18, 581 P.2d 442, 443-44 (1978)(further discussion on the point).

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Jimenez was charged with kidnapping two individuals at the Quick Stop who he was not charged also

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of robbing; and he was charged with kidnapping six individuals at the American Mini Market who he

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was not charged also of robbing. Under both the pre-plea and plea charging documents, there could not

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be a double punishment imposed for both robbery and kidnapping as to those eight individuals. There

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And as the Supreme Court of Nevada noted in Mendoza, it was the jury that acquitted
Mendoza of kidnapping the owner inside the home. The state supreme court thus had no occasion
to hold, and did not hold, that the evidence was not legally sufficient for a jury to convict Mendoza
of kidnapping the home owner as well.
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can be no double punishment for both robbery and kidnapping when a defendant is charged with

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kidnapping a person who he is not charged of robbing. Nor did the underlying evidence suggest that

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Jimenez and his accomplices robbed all eight of these individuals as a matter of fact, as opposed to

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instead only Luis Alvarado and Angelica Alvarado within that group of eight.10

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In all events, as discussed previously, application of the Mendoza analysis would not lead to a

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conclusion that a rational juror could not find Jimenez guilty of both robbery and kidnapping as to all

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eleven victims, including the three who Jimenez was alleged to have also robbed. There was sufficient

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evidence for a jury to find Jimenez guilty of kidnapping under the Mendoza analysis, as to all eleven

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first-degree kidnapping charges with weapon enhancements.

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Against that backdrop, the state supreme court did not objectively unreasonably apply Hill,

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Strickland, Jackson, or other clearly established federal law as determined by the United States Supreme

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Court when it rejected petitioner’s claim. Defense counsel properly advised Jimenez that he potentially

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could be found guilty of first-degree kidnapping with the use of a deadly weapon – in a situation where

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he faced eleven such counts with a maximum potential sentencing exposure of 22 consecutive life

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sentences, with an aggregate parole eligibility outside of a prison in that event only after 110 years.11

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That clearly was correct advice on the facts of Jimenez’ case under Mendoza and following cases.

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Jimenez nonetheless suggests that defense counsel’s advice to him at the time of his plea was

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incorrect because counsel represented to the prosecution during plea negotiations that the evidence was

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insufficient under Mendoza to convict him for kidnapping. Defense counsel wrote the following letter

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prior to an initial date scheduled for a preliminary hearing:

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The Court notes that, for there to be sufficient evidence to support the two kidnapping
counts in the charging document to which Jimenez pled guilty, there would need to be sufficient
evidence as to only one of the four victims charged in the alternative in the Quick Stop incident and
as to only one of the seven victims charged in the alternative in the American Mini Market incident.
See text, supra, at 6. Given the kidnappings of multiple customers at both stores – such as of Abel
Mata at the American Mini Market – who clearly were not themselves robbed, Jimenez indisputably
cannot demonstrate insufficiency of the evidence as to the two kidnapping counts to which he
actually pled.
11

Determinate sentences on the other counts with which he was charged potentially could
have added another 146 years of maximum time. See text, supra, at 4-5.
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Dear Ms. Keenan:

2

Thank you for returning my call this afternoon regarding Mr. Jimenez’s
case set for preliminary hearing on August 10, 2010.

3

In formulating your offer, please review the attached Motion to Suppress
Statements I intend to file in the event we cannot negotiate in this matter.
It is our position consistent with the Nevada Supreme Court’s decision in
Dewey v. State, 483 Nev. 490 (Nev. 2007) that Mr. Jimenez was not
properly advised of his Miranda warnings as mandated in the Dewey
opinion.

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Additionally, we do not believe the State can prove any kidnapping
charges in light of the Nevada Supreme Court’s decision in Mendoza v.
State, 122 Nev. 267 (Nev. 2006). The Court in Mendoza holds that “to
sustain convictions for both robbery and kidnapping arising from the
same course or conduct, any movement or restraint must stand alone with
independent significance from the act of robbery itself, create a risk of
danger to the victim substantially exceeding that necessarily present in
the crime of robbery, or involve movement, seizure or restraint
substantially in excess of that necessary to its completion.” Id. at 275.
The State has no such evidence against Mr. Jimenez.

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ECF No. 7, at 61.
Defense counsel’s argument in a position letter as part of plea negotiations does not establish

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how Mendoza applied to the facts of Jimenez’ case. Defense counsel was doing what a good defense

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lawyer is supposed to do, which is present a strong face to the prosecution while providing a realistic

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appraisal of the case to the defendant himself in private. Nothing in counsel’s position letter could

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override the strong evidence against Jimenez. Nothing in counsel’s position letter could establish how

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Mendoza actually applied to his case. Nothing in the letter established that the evidence that he faced

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was insufficient to convict him of eleven counts of first-degree kidnapping with the use of a deadly

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weapon, with potential exposure to 22 consecutive life sentences, much less that the evidence was

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insufficient to convict him of the two consolidated counts to which he pled.

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The sole remaining ground therefore does not provide a basis for federal habeas relief.12

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The Court expresses no opinion as to whether Jimenez’ admission of his guilt of firstdegree kidnapping during the plea colloquy forecloses the claim presented, pursuant to, inter alia,
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). See ECF No. 14-10, at 7-8; Exhibit 10, at 6-7.
The Court has assumed arguendo that a claim that the facts admitted during the colloquy allegedly
did not establish the crime in question is not barred by an admission of guilt as to those facts. Cf.
Class v. United States, 138 S.Ct. 798, 804-05 (2018). In all events, the record presented to the state
(continued...)
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IT THEREFORE IS ORDERED that the petition for a writ of habeas corpus is DENIED on
the merits and that this matter shall be DISMISSED with prejudice.

3

IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason

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would not find either the prior procedural holdings as to Grounds 2 and 3 or the dismissal herein of

5

Ground 1on the merits to be debatable or wrong, for the reasons assigned in the prior orders13 and herein.

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The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against

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petitioner, dismissing this action with prejudice.
DATED: July 16, 2018.

9

_______________________________
ANDREW P. GORDON
United States District Judge

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(...continued)
courts when the claim was decided on the merits established that petitioner could have been
convicted by a jury of first-degree kidnapping if the matter instead had proceeded to trial.
13

ECF No. 8, at 2; ECF No. 18, at 3.
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