Cahuec v. Smith et al

Filing 103

ORDER - Respondents' Motion to Dismiss (ECF No. 94 ) is granted. This action is dismissed with prejudice because it is untimely. The Clerk is directed to enter judgment accordingly and to close this action. A certificate of appealability is granted on the issue of whether Cahuec has failed to demonstrate actual innocence to bypass the time bar of 28 USC § 2244(d)(1). Signed by Judge Robert C. Jones on 11/24/2020. (Copies have been distributed pursuant to the NEF - AB)

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 1 of 26

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11

HUGO ISRAEL CAHUEC,

12

Petitioner,

13

Case No. 3:09-cv-00113-RCJ-RAM
ORDER

v.

14

GREGORY SMITH, et al.,

15

Respondents.

16
17

I.

Introduction
This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the court are the

18
19

second amended petition of Hugo Israel Cahuec (ECF No. 87), respondents' motion to dismiss

20

(ECF No. 94), Cahuec's opposition (ECF No. 99), and respondent's reply (ECF No. 102). The

21

action is untimely under 28 U.S.C. § 2244(d)(1), and the sole issue before the court now is

22

whether Cahuec can demonstrate actual innocence to bypass the statute of limitations. The court

23

finds that Cahuec has not demonstrated actual innocence, and the court dismisses the action.

24

II.

On the night of December 2, 2003, the following people, among others, were at a church

25
26

Facts

in Las Vegas, Nevada: S.G., a 4-year-old girl; two of S.G.'s brothers; I.G., their father; 1 Cesar

27
1

28

S.G. was a minor at the time, and her name needs to be redacted. LR IC 6-1(a). The court redacts the names of
S.G.'s parents because it would not be difficult to find S.G.'s name if the court used the names of the parents.

1

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 2 of 26

1

Mendoza, the church's pastor; Isabel Mendoza, Cesar's wife; and Cahuec. The pastor and I.G.

2

were inside the church, in a meeting. Cahuec was moving pieces of wood, described as 2x4s in

3

the defense investigation report, Ex. 44 (ECF No. 17-45 at 3), from the church into the pastor's

4

van. S.G. and at least one brother were outside with Cahuec, though that brother later went inside

5

the church. The meeting ended, and I.G. took S.G. and her brothers home. Sa.G., S.G.'s mother,

6

was working at her job at the time. She returned home around 1:00 a.m. I.G. was asleep at the

7

time, and he needed to wake up around 3:00 a.m. to go to his job. Ex. 44 (ECF No. 17-45 at 2).

8

On the morning of December 3, 2003, Sa.G. was at home with S.G. while I.G. was at his

9

job. S.G. told Sa.G. that it hurt to urinate. Ex. 4 at 16 (ECF No. 17-5 at 5). Sa.G. examined

10

S.G.'s vagina and saw that it was reddish but was not bleeding. Ex. 44 (ECF No. 17-45 at 2).

11

S.G. told Sa.G. that Cahuec had put S.G. into the pastor's car, pulled down her pants and

12

underwear, touched her with his finger, and that it hurt. Ex. 106 (ECF No. 73-49). S.G.

13

demonstrated to Sa.G. that Cahuec had rubbed her vagina. Id. at 25-26 (ECF No. 17-5 at 8).

14

Shortly thereafter, I.G. called. Sa.G. asked him what had happened at the church. I.G. said that

15

S.G. had said that something had happened, but he was not certain what it was or how serious it

16

was. Sa.G. took S.G. to a medical clinic. Apparently, the clinic's staff called the police, and an

17

ambulance took S.G. the hospital. Ex. 44 (ECF No. 17-45 at 2).

18

At the hospital, Dr. Michael Zbiegien examined S.G. He found no cuts, bruising, or

19

redness in S.G.'s vagina. Ex. 114 at 21 (ECF No. 74-3 at 22). His report indicated possible

20

sexual abuse and inconsistent statements. Ex. 114 at 22 (ECF No. 74-3 at 23).

21

Detective Art Chavez of the Las Vegas Metropolitan Police Department took S.G.'s

22

statement. The interview was in Spanish, later translated and transcribed into English. S.G. said

23

that Cahuec had put her into the front of the pastor's car. Ex. 42 at 8-9 (ECF No. 17-43 at 9-10).

24

She said that Cahuec had touched her on her tail. Ex. 42 at 7-8 (ECF No. 17-43 at 8-9).

25

Detective Chavez testified later that S.G. was pointing to her vagina when she used the Spanish

26

word for tail. Ex. 112 at 77-78 (ECF No. 74-1 at 78-79). S.G. said that Cahuec put his hand

27

under her pants but on top of her underpants. Ex. 42 at 10 (ECF No. 17-43 at 11). At the state-

28
2

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 3 of 26

1

court evidentiary hearing, 2 Detective Chavez testified that S.G. did not describe an act of sexual

2

penetration. Ex. 112 at 88 (ECF No. 74-1 at 89).

3

Detective Chavez spoke with Cahuec later on December 3, 2003. Cahuec said that, as

4

noted above, he was loading wood into Cesar's van. S.G. and her brothers were outside with him,

5

either helping or hindering him. After he loaded the van, he found that the rear doors would not

6

close. He started to unload the wood to try to load the van in a way that the rear doors would

7

close. He took each piece of wood out by sliding it beside and behind him. One time, he hit S.G.

8

in her vagina. She fell to the ground crying. He picked her up and put her into the rear of the

9

van. He then put his hand under her pants and underpants, and he rubbed her vagina to soothe

10

her. Cahuec explained that he put S.G. into the van because he did not want any passers-by to see

11

what he was doing. Ex. 41 at 5-24 (ECF No. 17-42 at 6-25). Detective Chavez asked Cahuec,

12

"Explain to me why you didn't just rub her outside of her shorts. Why did you have to put your

13

hand inside?" Cahuec responded, "I don't know. I don't know what got into me. The truth. I

14

can't tell you this, I don't know. But in that instant, I lifted just . . ." Ex. 41 at 24 (ECF No. 17-42

15

at 25). Cahuec disputed the accuracy of that translation. He hired an interpreter to translate the

16

interview from the recording. In that unofficial translation, his answer was, "I don'tt [sic] know, I

17

don't know why I did it, really, I can't tell you that, if I don't know, but at that moment I lifted her

18

like that." Ex. 115 (ECF No. 74-4 at 37). Detective Chavez arrested Cahuec. At the evidentiary

19

hearing, Detective Chavez noted that in either translation, Cahuec did not say specifically that he

20

had sexually penetrated S.G. Ex. 112 at 150 (ECF No. 74-1 at 113).

21

Cahuec testified at the evidentiary hearing. His testimony was consistent with his

22

statement to Detective Chavez. Ex. 112 at 194-251 (ECF No. 74-1 at 195-252), Ex. 113 at 5-12

23

(ECF No. 74-2 at 6-13).

24
25

The defense investigation report differs from Cahuec's statement with regard to S.G.'s
brothers. According to the investigator, I.G., Jr., age 10 at the time, said:

26

he was not outside when the alleged incident took place. He does state that he was
with his father inside the church, when his little sister, [S.G.] came in to tell her
father what had happened to her. I asked [I.G., Jr.] if it was light or dark outside,

27
28

2

All mentions of an evidentiary hearing refer to this state-court evidentiary hearing.

3

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 4 of 26

1
2

and his response was that it was dark. I asked him also if his sister was crying
when she came into the church, and his response was no. He did indicate that she
seemed upset. [I.G., Jr.] thought that it was probably around 7:00 p.m."

3

Ex. 44 (ECF No. 17-45 at 1). E.G. told the investigator that he had helped Cahuec with the wood

4

before he went into the church. E.G. said that S.G. and I.G., Jr. also were outside, then they all

5

went into the church. E.G. did not recall whether S.G. then went back outside alone. Id. (ECF

6

No. 17-45 at 1).

7
8
9
10
11

When asked at the preliminary hearing, Sa.G. testified that S.G. never mentioned that
Cahuec had hit her with a piece of wood. Ex. 4 at 27 (ECF No. 17-5 at 8).
S.G. testified at the preliminary hearing. She said that Cahuec had poked her with his
finger in her vagina, under her clothes. Ex. 4 at 51-52 (ECF No. 17-5 at 14).
In 2010, Isabel Mendoza executed a declaration. She stated that on the night of December

12

2, 2003, she was working in the church's shop. Cahuec entered the shop and said that he had hit

13

S.G. with a piece of wood. Ex. 45 (ECF No. 17-46).

14

Also in 2010, Cesar Mendoza executed a declaration. He stated that Sa.G. called him in

15

the morning of December 3, 2010, told him what S.G. had told her, and asked if she should take

16

S.G. to the doctor. He told Sa.G. to do what she needed to do. Later that day, Sa.G. called him

17

again. Sa.G. told him that the doctor had examined S.G. and concluded that she had not been

18

raped. Ex. 46 (ECF No. 17-47).

19

In 2012, Abigail Goldman, an investigator for the Federal Public Defender, contacted

20

S.G.'s parents. Eventually, she arranged to meet the parents alone at a McDonald's. At that

21

meeting, according to Sa.G., she informed them that Cahuec had received a life sentence; Sa.G.

22

had thought that Cahuec already had been released from prison. Ex. 112 at 30 (ECF No. 74-1 at

23

31). Sa.G. recalled that they spoke about sexual intent and penetration. Id. at 32 (ECF No. 74-1

24

at 33). I.G. recalled the same. Ex. 104 at 97-98 (ECF No. 74-1 at 98-99). Sa.G. also recalled

25

that Goldman said that Cahuec was in court proceedings, trying to clear up something that Sa.G.

26

could not remember. Ex. 112 at 34-35 (ECF No. 74-1 at 35-36). Goldman asked the parents to

27

talk with S.G. about what happened on December 2, 2003. Id. at 35-36 (ECF No. 74-1 at 36-37).

28

I.G. said that they wanted to think things over before letting S.G. speak with Goldman, to not hurt
4

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 5 of 26

1

S.G. Ex. 104 at 88 (ECF No. 73-47 at 89). They spoke with S.G. Ex. 104 at 89 (ECF No. 73-47

2

at 90 (I.G.'s testimony), Ex. 112 at 39 (ECF No. 74-1 at 40) (Sa.G.'s testimony).

3

In 2013, the parents called Goldman. They arranged a meeting with themselves, S.G.,

4

Goldman, and a translator. S.G.'s initial recounting of events was substantially the same as her

5

statements back in 2003 and 2004. Ex. 107 (ECF No. 73-50 at 2). 3 Cahuec pulled down both her

6

pants and her underwear. Id. (ECF No. 73-50 at 3). Then he touched her in her vagina. Id. (ECF

7

No. 73-50 at 3). Cahuec's fingers went inside her vagina. Id. (ECF No. 73-50 at 3-4, 5). S.G.

8

remembered that it hurt. Id. (ECF No. 73-50 at 6). She remembered Cahuec looking around for

9

people, seeing a lady walking, and then backing off of her to say hello or something else to the

10

lady. Id. (ECF No. 73-50 at 4). She remembered that she and her brothers were outside because

11

somebody needed help moving wood. Id. (ECF No. 73-50 at 4). She did not remember being hit

12

by wood because she did not think that it had happened. Id. (ECF No. 73-50 at 4). The following

13

exchange then occurred:

14

AG: At the trial, you didn't testify. Do you remember going to court? And I think
you were, were you in the courtroom when the testimony happened?

15

SG: I think.

16

AG: I think so. But your mom testified for you. At trial, when your mom
explained that you had told her that he was loading wood and he hit you in the
crotch with the wood.

17
18

SG: Um, I don't remember.

19

AG: Okay. Do you think it could have happened, or do you think that . . .

20

SG: I don't think, I don't think so . . .

21

AG: You don't remember there being wood or anyone loading wood?

22

SG: I remember there was wood but I don't, I don't, I don't remember that.

23
24

Id. (ECF No. 73-50 at 4-5). S.G. thought that Cahuec told her not to say anything to anybody.

25

Id. (ECF No. 73-50 at 3). S.G. remembered telling her father at the church what had happened,

26

but her father did not believe her. Id. (ECF No. 73-50 at 5). S.G., however, knew what had

27

3

28

Goldman recorded the interview on her iPhone. After returning to the office, she made an informal transcript,
which is Exhibit 107. Much later, when she tried to retrieve the recording, she learned that an update to the iPhone
irretrievably deleted the recording.

5

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 6 of 26

1

happened, so she told her mother the next morning. Id. (ECF No. 73-50 at 5). S.G. did not

2

remember Cahuec trying to pat or rub her to soothe her. Id. (ECF No. 73-50 at 6) S.G. thought

3

that the touching was sexual. Id. (ECF No. 73-50 at 6). I.G. and Goldman then discussed that

4

what would help Cahuec is S.G. both remembering being hit by wood and asserting that the

5

touching was not sexual. Id. (ECF No. 73-50 at 7). Goldman then read Cahuec's explanation of

6

events to S.G. Id. (ECF No. 73-50 at 7). Sa.G. wondered why Cahuec's prison sentence was so

7

long. Id. (ECF No. 73-50 at 11). I.G. said that they were willing to do whatever they needed to

8

do to help Cahuec. Id. (ECF No. 73-50 at 11). They offered to help get the medical records, and

9

Goldman said that even with those records, if S.G. maintained that Cahuec touched her sexually,

10

then the records would not matter. Id. (ECF No. 73-50 at 12). S.G. then said that she did not

11

think that the touching was sexual. Id. (ECF No. 73-50 at 12). I.G. then told Sa.G., "It's

12

basically all on her (the daughter). It's not me or you (he or his wife)." Id. (ECF No. 73-50 at

13

13). Sa.G. said that when the family went to speak with "an attorney," probably a prosecutor,

14

they told the attorney that they did not want to charge Cahuec with a crime, but the attorney told

15

them that that decision was not theirs to make. Id. (ECF No. 73-50 at 13). Goldman responded:

16

20

It's true, I mean, if something illegal happened, they have the obligation to make
an arrest. I can tell you that in our experience, children are very easy to influence,
I think children want to please police officers, I think children can be encouraged
to say things or exaggerate, but really all that matters is your memory of it. And,
um, it's extra difficult because so much time has passed, and the more time that
goes by, the fainter the memory gets, and you stop remembering the wood, you
stop remembering exactly what happened, and that's why it helps to just hear the
other side, and take some time and just sit with it, and see, and try to come to some
certainty. I mean, right now, how do you feel?

21

Id. (ECF No. 73-50 at 13) (emphasis added). S.G. then said that she started to remember Cahuec

22

hitting her with wood. Id. (ECF No. 73-50 at 13-14). Her memory of Cahuec penetrating her

23

with a finger faded away. Id. (ECF No. 73-50 at 15). She said that Cahuec helped her up and

24

rubbed her vagina to soothe her. Id. (ECF No. 73-50 at 15). Goldman said that if S.G. now truly

25

believed that explanation of events, then S.G. would need to write all that down in a declaration.

26

Id. (ECF No. 73-50 at 16-17). Goldman later testified at the evidentiary hearing that she read

27

Cahuec's explanation to S.G. because S.G.'s initial explanation of events had inconsistencies with

17
18
19

28
6

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 7 of 26

1

prior statements and S.G. did not seem certain about what she remembered. Ex. 114 at 87 (ECF

2

No. 74-3 at 88).

3

After the interview, S.G. wrote a sworn statement by hand. She stated:

4

Hello my name is [S.G.]. I am 13 years old now about to turn 14 in days. Well
the reason why I'm writeing [sic] this letter is so you guys can hear what happed
[sic]. I remember Hugo was unloading wood from the van and that he accidently
hit me with one of the pieces of wood, on my private parts. I was on the floor
crying because so he playced [sic] me on the van and he was rubbing my private
parts so it could feel better but it was a misunderstanding because it was NOT
sexuall. I'm sorry because of this misunderstanding I didn't want him to go to jail.

5
6
7
8
9
10
11
12
13
14
15
16

Ex. 66 (ECF No. 73-9). Two weeks later, she signed a sworn, typed declaration. She stated:
1.
My name is [S.G.]. I am thirteen years old. I am the same [S.G.] police
interviewed in 2003 about Hugo Israel Cahuec. I testified at Cahuec's preliminary
hearing in 2004, when I was four years old.
2.
On April 4, 2013, I wrote a statement describing what happened with Hugo
and I on December 2, 2003. I wrote the attached statement freely and was not
forced by anyone to do so. It is true to the best of my knowledge and belief.
3.
When Hugo was rubbing me, at no point did his finger or any part of his
body enter my genital opening.
Ex. 65 (ECF No. 73-8).
At the evidentiary hearing, S.G. testified to the same. She also testified that she would not

17

lie to have Cahuec released from prison. She testified that she changed her mind about what

18

happened after Goldman told her what Cahuec had said. Ex. 104 at 35 (ECF No. 73-47 at 36).

19

She also testified that Cahuec's statement helped her remember, and that it did not tell her what to

20

remember. Id. at 36 (ECF No. 73-47 at 37).

21

Sa.G. testified at the evidentiary hearing. She recalled S.G. telling her on the morning of

22

December 3, 2003, that it hurt for S.G. to urinate. Ex. 104 at 120 (ECF No. 73-47 at 121). S.G.

23

told her that Cahuec had touched in her vagina, but Sa.G. did not remember whether S.G. said

24

that Cahuec's finger went inside her. Ex. 104 at 120, 121 (ECF No. 73-47 at 121, 122). Sa.G.

25

also testified that hospital staff told her that S.G. was not penetrated. Ex. 104 at 120 (ECF No.

26

73-47 at 121). On cross-examination, Sa.G. had no memory of telling a police officer named

27

Denton that S.G. said that Cahuec had removed S.G.'s pants and underwear and then put his

28

fingers into S.G.'s vagina. Ex. 112 at 29 (ECF No. 74-1 at 30).
7

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 8 of 26

1

I.G. executed a declaration. He stated, "At the time, I remember members of the church

2

were organizing and moving planks of wood inside the church. Though considerable time has

3

passed, I believe [S.G.] may have told me that Cahuec accidentally hit her with a piece of wood.

4

I did not think what happened to my daughter was serious." Ex. 64 (ECF No. 73-7). Then he

5

said, "I believe [S.G.] was so young when this incident occurred that she did not know the

6

difference between a touch meant to sooth an injury and a touch that is sexual. I believe Cahuec

7

may have accidentally hit my daughter in the groin with wood, and then attempted to rub her as

8

one rubs a child's injury." Id. He continued, "If my daughter had told me or given me the

9

slightest impression that Cahuec had touched her sexually, removed her pants or removed her

10

underwear, I would have immediately reacted. Had my daughter told me something so serious

11

had occurred, I believe I would remember it today. I have no memory of my daughter telling me

12

Cahuec touched her sexually while at church." Id.

13

I.G. testified at the evidentiary hearing:

14

Q

15

A
When we were leaving the church. When we were heading home. Inside
the vehicle when we were going home.

16
17
18
19
20
21
22
23

The statement that you just mentioned when, exactly, was it made to you?

Q
Okay. When—what exactly—to the best of your memory, what did your
daughter tell you?
A.
That's what she told me. The best I can remember that he had hit her with
a wooden stick—a beam near her private area.
Q

Did she tell you that he had rubbed the area?

A

I don't recall exactly but I believe she did say that.

Q

Did she ever tell you that part of his finger had gone inside of her?

A

No, I don't recall her saying that.

24

Q
Was what she said to that night, was that something that was a matter of
concern to you?

25

A

26
27
28

It concerned me in a way but I did not consider that as serious.

Ex. 104 at 86 (ECF No. 73-47 at 87) (direct examination).
Q
. . . My question is the first time that you learned about Hugo touching your
daughter is when your wife, [Sa.G.], called you at work following the evening that
everyone went to church?
8

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 9 of 26

1

A

I don't recall exactly.

2

Q

Okay.

3

A
I don't recall that she was at work. And next day, what I recall is when—
that she found out. But I don't recall exactly.

4
5

Q
Okay. And then she called you and told you she wanted to call the police
and take your child to the doctor, correct?

6

A
I remember that her—well, we both went to the hospital. No, I'm sorry. I
believe I was at work—I don't remember exactly.

7
8

Q
Okay. Did you tell your wife when you got home from church that your
daughter had been hit by a board and injured?

9

A
I don't recall, but I don't think I told her that because she was coming home
very late from work, like around one or two in the morning.

10
11

Q
Did [S.G.] tell you that evening that Hugo had rubbed her on her vaginal
area or her genital area?

12

A

13

Q
Did you not just say on direct examination that she said he rubbed her
vagina to Mr. Norwood?

No, she did not say that.

14
15

A
No, what she said to me is that he had hit her with that wooden beam. That
he had rubbed her but she never mentioned that it was on her vagina, that exact
area.

16
Q

Where did you think that he rubbed her?

A

Well, near her private parts but not on her private parts.

17
18
19

Q
Did Hugo come into you at any time that night at the church and tell you
your daughter was hurt?

20

A

I don't remember but I don't think so.

21

Q

Okay. Was your daughter crying at church that night?

22

A
No, I did not see her crying. When we got home I think I remember her
complaining about mild pain, little pain.

23
24
25

Ex. 104 at 93-94 (ECF No. 73-47 at 94-95).
Dr. Zbiegien testified at the evidentiary hearing. He testified that he saw no sign of sexual

26

abuse. Ex. 114 at 20-22 (ECF No. 74-3 at 21-23). However, he noted that if there were no cuts

27

or bruises, then redness could heal quickly. Id. at 32 (ECF No. 74-3 at 33). It was possible for

28

labial skin to be rubbed at 9:00 p.m. one day, when the incident occurred, and not have any
9

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 10 of 26

1

redness by 4:30 p.m. the next day, when he examined S.G. Id. at 33 (ECF No. 74-3 at 34). He

2

then testified:

3

5

Q
Okay. Is it unusual, in your experience, during sexual assault examinations
that when the alleged conduct is rubbing of the genital area including the labia, not
necessarily putting fingers in the vagina, but just rubbing sufficient for, what we
call, legal penetration versus medical penetration, I guess, is it unusual that you see
nothing?

6

A

It's not unusual

7

Q

Is it, in fact, more usual that you see nothing?

8

A
It's very usual that we don't. In fact one of the axioms, if you will, in this—
in the study is that it's normal to be normal. So you can have a normal
examination in conjunction with touching.

4

9
10

Id. at 33-34 (ECF No. 74-3 at 34-35). Dr. Zbiegien completed a form report, on which a box

11

indicating inconsistent statements was marked. He explained that he marked that box because

12

while there was a statement, nobody made a statement to him specifically. Ex. 114 at 29 (ECF

13

No. 74-3 at 30).

14

II.

Procedural Background

15

A.

Definitions of offenses

16

Three offenses are at issue in this case: Sexual assault, lewdness with a child under the

17

age of 14, and first-degree kidnapping. The definitions and possible sentences for these offenses

18

as they existed around the time of the incident in December 2003 are essential for understanding

19

Cahuec's plea agreement.
1.

20

The version of the sexual assault statute in effect in December 2003 stated, in relevant

21
22
23
24
25
26
27
28

Sexual assault

part:
1. A person who subjects another person to sexual penetration, or who forces
another person to make a sexual penetration on himself or another, or on a beast,
against the will of the victim or under conditions in which the perpetrator knows or
should know that the victim is mentally or physically incapable of resisting or
understanding the nature of his conduct, is guilty of sexual assault. [. . .]
3. [A] person who commits a sexual assault against a child under the age of 16
years is guilty of a category A felony and shall be punished:
(a) If the crime results in substantial bodily harm to the child, by imprisonment in
the state prison for life without the possibility of parole.
10

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 11 of 26

1

(b) Except as otherwise provided in paragraph (c), if the crime does not result in
substantial bodily harm to the child, by imprisonment in the state prison:

2
3

(1) For life with the possibility of parole, with eligibility for parole beginning
when a minimum of 20 years has been served; or

4

(2) For a definite term of 40 years, with eligibility for parole beginning when a
minimum of 15 years has been served.

5
6
7

(c) If the crime is committed against a child under the age of 14 years and does not
result in substantial bodily harm to the child, by imprisonment in the state prison
for life with the possibility of parole, with eligibility for parole beginning when a
minimum of 20 years has been served.

8

Nev. Rev. Stat. § 200.366 (2003). "Sexual penetration," as defined in December 2003, "means

9

cunnilingus, fellatio, or any intrusion, however slight, of any part of a person's body or any object

10

manipulated or inserted by a person into the genital or anal openings of the body of another,

11

including sexual intercourse in its ordinary meaning." Nev. Rev. Stat. § 200.364(2) (1999).

12

2.

Lewdness with a child under the age of 14 years

13

The version of the lewdness statute in effect in December 2003 states, in relevant part:

14

1. A person who willfully and lewdly commits any lewd or lascivious act, other
than acts constituting the crime of sexual assault, upon or with the body, or any
part or member thereof, of a child under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust or passions or sexual desires of that
person or of that child, is guilty of lewdness with a child.

15
16
17

2. [A] person who commits lewdness with a child is guilty of a category A felony
and shall be punished by imprisonment in the state prison for:

18
19

(a) Life with the possibility of parole, with eligibility for parole beginning when a
minimum of 10 years has been served, and may be further punished by a fine of
not more than $10,000; or

20
21

(b) A definite term of 20 years, with eligibility for parole after a minimum of 2
years has been served, and may further be punished by a fine of not more than
$10,000.

22
23
24
25

Nev. Rev. Stat. § 201.230 (2003) (emphasis added).
3.

The 2003 amendments to sexual assault and lewdness

In 2003, in Assembly Bill No. 78, the Nevada Legislature amended both the sexual assault

26

statute and the lewdness statute in the same act. 2003 Nev. Stat. 2825. The act itself did not

27

specify an effective date, and thus the amendments became effective on October 1, 2003, around

28

two months before the events in this case. Nev. Rev. Stat. § 218D.330(1) (formerly Nev. Rev.
11

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 12 of 26

1

Stat. § 218.530). Two changes in possible sentences are relevant to this case. First,

2

§ 200.366(3)(b)(2) was amended from a definite term of 20 years, with eligibility for parole

3

beginning when a minimum of 5 years has been served, to a definite term of 40 years, with

4

eligibility for parole begging when a minimum of 15 years has been served. Second § 201.230

5

was amended to add as a possible sentence a definite term of 20 years, with eligibility for parole

6

after a minimum of 2 years has been served. Before the 2003 amendments, the only possible

7

sentence for lewdness with a child under 14 was life imprisonment with eligibility for parole after

8

a minimum of 10 years has been served. The 2003 amendments were in effect in December

9

2003, at the time of the events in this case. However, as the court explains below, the sentence

10
11

that Cahuec received does not comply with the amended statute.
4.

First-degree kidnapping

12

The definition of first-degree kidnapping has not changed since 1995. It is:

13

1. A person who willfully seizes, confines, inveigles, entices, decoys, abducts,
conceals, kidnaps or carries away a person by any means whatsoever with the
intent to hold or detain, or who holds or detains, the person for ransom, or reward,
or for the purpose of committing sexual assault, extortion or robbery upon or from
the person, or for the purpose of killing the person or inflicting substantial bodily
harm upon the person, or to exact from relatives, friends, or any other person any
money or valuable thing for the return or disposition of the kidnapped person, and
a person who leads, takes, entices, or carries away or detains any minor with the
intent to keep, imprison, or confine the minor from his or her parents, guardians, or
any other person having lawful custody of the minor, or with the intent to hold the
minor to unlawful service, or perpetrate upon the person of the minor any unlawful
act is guilty of kidnapping in the first degree which is a category A felony.

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

Nev. Rev. Stat. § 200.310. The relevant punishments for first-degree kidnapping are:
A person convicted of kidnapping in the first degree is guilty of a category A
felony and shall be punished: [. . .]
2. Where the kidnapped person suffers no substantial bodily harm as a result of the
kidnapping, by imprisonment in the state prison:
(a) For life with the possibility of parole, with eligibility for parole beginning
when a minimum of 5 years has been served; or
(b) For a definite term of 15 years, with eligibility for parole beginning when a
minimum of 5 years has been served.
Nev. Rev. Stat. § 200.320.

28
12

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 13 of 26

1
2
3
4
5
6
7

B.

Procedural History
1.

The initial charge: Lewdness with a child under the age of 14

The prosecution originally charged Cahuec with lewdness with a child under the age of
14, Nev. Rev. Stat. § 201.230, on December 11, 2003. Ex. 2 (ECF No. 17-3).
2.

Preliminary hearing: Sexual assault with a minor under the age of 14

and lewdness with a child under the age of 14 (2 counts each)
On the day of the preliminary hearing, January 26, 2004, the prosecution filed an amended

8

complaint. It charged Cahuec with two counts of sexual assault with a minor under the age of 14

9

and two counts of lewdness with a child under the age of 14. Ex. 5 (ECF No. 17-6). The justice

10

court bound Cahuec over to the district court on one count of each offense. The justice court

11

dismissed one count of each offense. Ex. 4 at 86 (ECF No. 17-5 at 23).

12
13
14

3.

Information: Sexual assault with a child under the age of 14 and

lewdness with a child under the age of 14
Consistent with the justice court's ruling, on January 28, 2004, the prosecution charged

15

Cahuec with one count of sexual assault with a child under the age of 14 and one count of

16

lewdness with a child under the age of 14. Ex. 6.

17
18
19

4.

Plea agreement: Sexual assault with a child under the age of 16 and

first-degree kidnapping
On August 24, 2004, the prosecution and Cahuec arrived at a plea agreement. Cahuec

20

agreed to plead guilty to one count of sexual assault with a child under the age of 16 and one

21

count of first-degree kidnapping. Ex. 20 (ECF No. 17-21). The parties stipulated to the

22

sentences. For the sexual-assault count, Cahuec would receive a sentence of 20 years with parole

23

eligibility starting after a minimum of 5 years. For the kidnapping count, Cahuec would receive a

24

sentence of life imprisonment with parole eligibility starting after a minimum of 5 years. The

25

parties could argue whether the court should run the sentences concurrently or consecutively. Id.

26

The prosecution filed an amended information the same day. Ex. 18 (ECF No. 17-19). The state

27

district court accepted Cahuec's plea. Ex. 19 (ECF No. 17-20). The prosecution filed a second

28
13

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 14 of 26

1

amended information on September 8, 2004. Ex. 21 (ECF No. 17-22). The state district court ran

2

the sentences consecutively. Ex. 23 (ECF No. 17-24).

3

III.

Discussion

4

A.

The oddities with the plea agreement

5

At the start of the preliminary hearing, counsel for Cahuec was surprised at the addition of

6

one more count of lewdness with a child under the age of 14 and two counts of sexual assault

7

with a child under the age of 14. Ex. 4 at 6 (ECF No. 17-5 at 3). She noted, "Your Honor, in

8

discussion with my client, the minimum he could possibly face would be a 2 to 20 under our new

9

statute. This is kind of a huge departure from that if he is now facing 20 to life" for sexual assault

10

with a child under the age of 14. Ex. 4 at 7 (ECF No. 17-5 at 3) (emphasis added). The justice

11

court later dismissed one count each of sexual assault and lewdness. The main point, which the

12

court has emphasized in the quotation of defense counsel, is that counsel knew that about the new

13

possible, and more lenient, sentence for lewdness.

14

As the court described above, the act that created the new sentence for lewdness also

15

increased the more lenient sentence for sexual assault with a child under the age of 16, from 5-20

16

years in prison to 15-40 years in prison. However, at the plea hearing, the prosecutor stated:

17
18
19
20

At the time of sentencing, both parties agree that as to count one [sexual assault
with a child under the age of 16], which could be either a 20 to life or five to 20,
we would agree to the five to 20, and as to Count two, the first degree kidnapping,
which is either a five to 15 or five to life, that he would receive the five to life.
Beyond that, both sides retaining the right to argue, the State retaining the right to
argue for consecutive time between the counts.

21

Ex. 19 at 4 (ECF No. 17-20) (emphasis added). When the judge asked Cahuec what he did that

22

made him guilty of first-degree kidnapping, the defense counsel and the prosecutor stated:

23
24
25
26
27
28

MS. ROUNDTREE [defense counsel]: This may have been legal position for
purposes of plea negotiations or under certain—I think certain case law. He
basically held her for the purposes of committing the offense, which he just
admitted to, and I think that might also satisfy the elements of the first degree
kidnapping. It does not legally—we're waiving defect in the pleading.
MS. HOLTHUS [prosecutor]: And beyond that, actually it is technically there, as
well, because she was on the street outside of the van. He put her inside of the van
for purpose—for purposes of the sexual assault.
Ex. 19 at 12-13 (ECF No. 17-20 at 13-14).
14

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 15 of 26

1

The first oddity lies with the emphasized portion of the prosecutor's summary of potential

2

sentences for sexual assault with a child under 16. The sentence for sexual assault on which they

3

agreed, 5-20 years, no longer was a legal sentence.

4
5
6
7
8
9
10
11
12

This oddity carried on into the state-court evidentiary hearing. At the start, respondents'
counsel explained:
Just so the Court understands, this case came in, obviously we pretrialed this child
and the charges changed and that's routine in these type of cases.
I can tell you what the Defendant ultimately pled to was a plea accommodation for
a specific sentence that was sought out by the Public Defender's office. In other
words, he was charged with a sexual assault under 14, which was a 20 to life.
Back when he entered this plea, a sexual assault under 16 had the potential
sentence of a 5 to 20. So that was sought out. He was not charged with that at the
beginning. Nor was he charged with the first degree kidnapping when this case
was filed. Those were all an accommodation for the plea. I mean that was what
was agreed to. So I just wanted that to be put on the record.

13

Ex. 104 at 12-13 (ECF No. 71-49 at 13-14) (emphasis added). The emphasized clause is

14

incorrect.

15

The parties could not have been ignorant about the amendments to the potential sentences

16

for sexual assault and lewdness, because Cahuec's counsel herself knew about the 2-20 year

17

sentence for lewdness. The parties could not have failed to realize that the act amending the

18

potential sentences for lewdness also amended the potential sentences for sexual assault, because

19

the same act of the legislature amended the potential sentences for both offenses and because that

20

act amended the sexual-assault statute first.

21

The second oddity lies with the charge that was dropped, lewdness, and the charge that

22

was added, first-degree kidnapping. Respondents argue that the prosecution dropped the

23

lewdness charge and added the kidnapping charge as part of the plea agreement. Respondents

24

then argue that the sentence for lewdness, 10 years to life, is greater than the sentence for

25

kidnapping, 5 years to life. Respondents conclude that Cahuec will need to show that he is

26

actually innocent of both sexual assault, a charge to which he pleaded guilty, and lewdness, a

27

charge the prosecution dropped in favor of the less-serious kidnapping charge. ECF No. 94 at 6.

28

See also Bousley v. United States, 523 U.S. 614, 624 (1998). Petitioner counters that the
15

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 16 of 26

1

minimum sentence for lewdness is less than the minimum sentences for sexual assault and for

2

kidnapping, and thus lewdness was not a more-serious charge that the prosecution dropped as part

3

of the plea agreement. ECF No. 99 at 4 n.2.

4

If the plea agreement dropped the lewdness charge in favor of the kidnapping charge, then

5

that would imply that Cahuec could have been convicted of both sexual assault and lewdness for

6

one act. However, lewdness excludes acts that constitute the crime of sexual assault. Nev. Rev.

7

Stat. § 201.230(1) (2003). Statutorily, the crimes are mutually exclusive. Cahuec could not have

8

pleaded guilty to both sexual assault and lewdness based upon the same act.

9

The third oddity is the range of possible sentences before the 2003 amendments, and it

10

assumes that the parties forgot or did not know about the amendments to the sentences. The sole

11

sentence for sexual assault with a child under 14 was 20 years to life. Nev. Rev. Stat.

12

§ 200.366(3)(c) (1999). The possible sentences for sexual assault with a child under 16 were 20

13

years to life and 5-20 years. Nev. Rev. Stat. § 200.366(3)(b) (1999). The sole sentence for

14

lewdness with a child under 14 was 10 years to life. Nev. Rev. Stat. § 201.230 (1999). A person

15

could receive less of a punishment for sexual assault with a child under 16 than for lewdness. 4 As

16

noted above, sexual assault and lewdness are mutually exclusive by statute. If the parties were

17

assuming that the pre-2003 amendments still were in effect, and if they agreed on a sentence of 5-

18

20 years for sexual assault with a child under 16 years, then lewdness was a more serious offense

19

that the prosecution dropped in exchange for Cahuec's guilty plea to sexual assault with a child

20

under 16 years.

21

B.

Cahuec needs to demonstrate actual innocence of lewdness with a minor

22

under 14, sexual assault with a minor under 16, and first-degree kidnapping

23

The best way to determine the seriousness of the offenses is to lay out the possible

24

sentences in tables, one for the 1999 version of the statutes and one for the 2003 version of the

25

statutes. The court does not include aggravating factors such as serious bodily harm or prior

26

convictions. The court includes the possible sentences for sexual assault without any age element

27

4

28

Perhaps even more strangely, the lowest possible sentence for sexual assault, without any other factors, was 10-25
years. Nev. Rev. Stat. § 200.366(2)(b)(2). Before the 2003 amendments, a victim under the age of 16 potentially
mitigated the sentence for sexual assault.

16

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 17 of 26

1

for the purposes of comparison. The court emphasizes the sentence that Cahuec negotiated for

2

sexual assault with a minor under 16.

3
4

1999 Versions
Sexual Assault

6

20 to life

10 to life

7

Sexual Assault < 14

20 to life

5

Sexual Assault < 16

Lewdness

10 to 25

8

10 to life

5 to 20

9
10

2003 Versions
Sexual Assault

Sexual Assault < 16

Sexual Assault < 14

11

20 to life

20 to life

12

15 to 40

13

10 to life

14

Lewdness

10 to 25

10 to life

15

2 to 20

16
17

Cahuec will need to prove that he is actually innocent of sexual assault with a child under

18

the age of 14, lewdness with a child under the age of 14, and first-degree kidnapping. The tables

19

show that the sentence for sexual assault with a minor under 16 is the least serious offense

20

possible. This assumes that the parties were free to choose among sentences that the law

21

authorized and sentences that the law no longer authorized. Petitioner argues that the possible

22

sentence of 2-20 years for lewdness is less serious than the sentence for sexual assault with a

23

minor under 16. The court disagrees. Not only were the parties negotiating the offenses in the

24

plea agreement, they were negotiating the sentences for the offenses. Even under the 2003

25

versions, lewdness still has a possible sentence of 10 to life, and Cahuec was trying to avoid that

26

sentence. If the court considers together the negotiated sentences for sexual assault and first

27

degree kidnapping, 5-20 years and 5 years to life, respectively, then the worse possible outcome

28
17

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 18 of 26

1

for petitioner would have been if the trial court ran those sentences consecutively. The better

2

possible outcome for Cahuec would have been if the trial court ran the sentences concurrently,

3

which effectively would be a sentence of 5 years to life. That would have been better than a

4

single sentence of 10 years to life for lewdness. Additionally, if the sentence that was more

5

favorable to Cahuec was 5 years to life, then that was the best possible sentence that Cahuec

6

could negotiate with the prosecution. Although the statute authorized a potential sentence of 2-20

7

years for lewdness, it was clear that the prosecution would not agree to that sentence as part of the

8

negotiations. To determine otherwise would mean that the prosecution offered a stipulated

9

sentence of 2-20 years but that Cahuec's counsel rejected that sentence in favor of a sentence that

10

could be 5 years to life or 10 years to life. Cahuec makes no claim that counsel acted in such a

11

way. The potential sentence of 2-20 years was available to Cahuec only if he decided to go to

12

trial. Of course, the possible negative consequences included a potential sentence of 10 years to

13

life if he was convicted of lewdness or a definite sentence of 20 years to life if he was convicted

14

of sexual assault of a child under 14, which were two sentences that he wanted to avoid. In short,

15

the potential sentence of 2-20 years never was part of the sentence negotiations. In determining

16

seriousness of an offense, the court will not consider a possible sentence that the parties

17

themselves did not consider.

18

Cahuec needs to demonstrate actual innocence for first-degree kidnapping because, for the

19

reasons described above, the prosecution could not have dropped the lewdness count in exchange

20

for the kidnapping count without running afoul of the statutory requirement that lewdness and

21

sexual assault are mutually exclusive. However, first-degree kidnapping has two alternative

22

elements. In relevant part, the offender must carry away a person with the intent to commit

23

sexual assault, or the offender must carry away a minor with the intent of perpetrating "upon the

24

person of the minor any unlawful act." Nev. Rev. Stat. § 200.310. Consequently, if Cahuec can

25

demonstrate actual innocence for sexual assault and lewdness, then necessarily he has

26

demonstrated actual innocence for first-degree kidnapping.

27
28
18

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 19 of 26

1

C.

Standard of review

2

Actual innocence can excuse operation of the statute of limitations. McQuiggin v.

3

Perkins, 569 U.S. 383, 386-87 (2013). A claim of actual innocence requires Cahuec "to support

4

his allegations of constitutional error with new reliable evidence." Schlup v. Delo, 513 U.S. 298,

5

324 (1995). "[A] petitioner does not meet the threshold requirement unless he persuades the

6

district court that, in light of the new evidence, no juror, acting reasonably, would have voted to

7

find him guilty beyond a reasonable doubt." Id. at 329. The court "must consider all the

8

evidence, old and new, incriminating and exculpatory, without regard to whether it would

9

necessarily be admitted under rules of admissibility that would govern at trial." House v. Bell,

10

547 U.S. 518, 538 (2006). "Based on this total record, the court must make 'a probabilistic

11

determination about what reasonable, properly instructed jurors would do.'" Id. (quoting Schlup,

12

513 U.S. at 329).

13

D.

The evidence that Cahuec presents either is not new or is not reliable
1.

14

Isabel Mendoza's declaration does not contain new evidence

15

In her declaration, Isabel Mendoza states that Cahuec told her on the night of December 2,

16

2003, that he had accidentally hit S.G. in the crotch with a 2x4. Taking her declaration as true, 5 it

17

does not contain new evidence. It repeats what Cahuec told Detective Chavez on December 3,

18

2003. Isabel Mendoza's declaration has no effect on the actual-innocence analysis.
2.

19

Cesar Mendoza's declaration does not contain reliable evidence

20

In his declaration, Cesar Mendoza states that Sa.G. called him after S.G.'s medical

21

examination and told him that S.G. had not been raped. Again, taking the declaration as true, this

22

is not reliable evidence. Dr. Zbiegien testified that it was usual for legal penetration to leave no

23

physical signs. If somebody told Sa.G. that S.G. had not been raped, then that statement was

24

inaccurate for the definition of sexual penetration. Cesar Mendoza's affidavit has not effect on

25

the actual-innocence analysis.

26
27
5

28

Cahuec initially planned to call Isabel Mendoza and Cesar Mendoza as witnesses at the evidentiary hearing, but
then decided not to call them. Ex. 113 at 16 (ECF No. 74-2 at 17).

19

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 20 of 26

1

3.

S.G.'s statements from 2013-15 are not reliable evidence

2

S.G. has a poor memory of the events. Respondents cite the numerous times in the

3

evidentiary hearing that she said that she did not remember something. ECF No. 102 at 3.

4

Perhaps she said that she could not remember because she was nervous, but other evidence in the

5

record shows that her statement that Cahuec hit her with a 2x4 is unreliable.

6

On the night of December 2, 2003, S.G. was 4 years old. If Cahuec had hit S.G. with a

7

2x4 in her crotch hard enough to leave red marks and to cause pain in urination the next morning,

8

then S.G. would have been crying and yelling almost immediately and incessantly. Her brother

9

would have seen and heard her enter the church crying and yelling. Instead, he saw S.G. enter the

10

church visibly disturbed but silent. In the church, S.G. would have been crying to I.G. about what

11

had happened. Instead, I.G. told Sa.G. the next day that he had a vague memory of S.G. telling

12

him something, but he did not know the details until Sa.G. told him. That next day, S.G. would

13

have told Sa.G. that it hurt to urinate because Cahuec had hit her in the crotch with a 2x4.

14

Instead, S.G. told Sa.G. that it hurt to urinate because Cahuec had touched her in her vagina and

15

that the touching had hurt. S.G. would have told medical staff that Cahuec had hit her in the

16

crotch with a 2x4. She did not. S.G. would have told Detective Chavez that Cahuec had hit her

17

in the crotch with a 2x4. Instead, she told Detective Chavez that Cahuec had put something

18

unspecified of his into something unspecified of hers and that Cahuec had touched her vagina. At

19

the preliminary hearing, S.G. would have testified that Cahuec had hit her in the crotch with a

20

2x4; at the very least, defense counsel would have asked S.G. that question on cross-examination.

21

Instead, S.G. did not so testify, and defense counsel did not ask the question.

22

S.G. was remarkably consistent for a 4-year-old girl in not saying that Cahuec had hit her

23

in the crotch with a 2x4, at the times closest to the event itself, when the memory and the pain

24

would have been freshest in her mind. For S.G.'s recollection in 2013-15 that Cahuec had hit her

25

with a 2x4 to be reliable, then some record from 2003-04 would contain a statement that Cahuec

26

had hit her with a 2x4. S.G. did not make any such statement in 2003-04, and thus her

27

recollection in 2013-15 cannot be reliable.

28
20

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 21 of 26

1

The court quotes again an exchange from Goldman's interview of S.G. in 2013:

2

AG: At the trial, you didn't testify. Do you remember going to court? And I think
you were, were you in the courtroom when the testimony happened?

3
4
5
6
7
8
9
10
11

SG: I think.
AG: I think so. But your mom testified for you. At trial, when your mom
explained that you had told her that he was loading wood and he hit you in the
crotch with the wood.
SG: Um, I don't remember.
AG: Okay. Do you think it could have happened, or do you think that . . .
SG: I don't think, I don't think so . . .
AG: You don't remember there being wood or anyone loading wood?
SG: I remember there was wood but I don't, I don't, I don't remember that.

12

Id. (ECF No. 73-50 at 4-5). Almost everything that Goldman said was not true. S.G. did testify

13

at the preliminary hearing. She said that Cahuec had poked her in her vagina. Sa.G. testified that

14

S.G. never told her that Cahuec had hit her with wood. Calling the preliminary hearing a trial,

15

with different burdens of proof, was the least of the problems. Goldman's interview, and S.G.'s

16

subsequent statements, are based on a false premise. Goldman incorrectly told S.G. that when

17

S.G. was 4, she told Sa.G. that Cahuec had hit her in the crotch with a 2x4. S.G. told Goldman

18

that she did not remember saying that. Goldman then read Cahuec's statement to S.G. Goldman

19

told S.G. that memories fade over time, so perhaps S.G. remembered the touching but forgot

20

about being hit with a 2x4. S.G. then said that she remembered that Cahuec had hit her in the

21

crotch with a 2x4 and rubbed her vagina to soothe the pain.

22

That all is wrong. The reason why S.G. did not remember in 2013 that she had told

23

people in 2003 that Cahuec had hit her in the crotch with a 2x4 is not because, as Goldman

24

suggested, that the memory had faded over time. The real reason why S.G. did not remember

25

telling people in 2003 that Cahuec had hit her in the crotch with a 2x4 is because S.G. did not tell

26

people in 2003 that Cahuec had hit her in the crotch with a 2x4. S.G. never had a memory that

27

Cahuec's statement refreshed.

28
21

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 22 of 26

1

Given that S.G.s statements in 2013-15 are based upon a memory of saying something to

2

her mother in 2003 that, in fact, she had not said, S.G.'s statements are not reliable evidence of

3

actual innocence.

4

4.

5

I.G.'s declaration and testimony are not reliable

I.G. both executed a declaration and testified that on the night of December 2, 2003, S.G.

6

came to him in the church and told him that Cahuec had hit her with a piece of wood. His

7

declaration and testimony suffer from the same problem of reliability as S.G. If S.G. did tell him

8

in 2003 that Cahuec had hit her with wood, then some record of that statement would exist. For

9

example, when he called Sa.G. the next morning and Sa.G. told him what S.G. had said, he would

10

have told Sa.G. that S.G. told him that Cahuec had hit her with a piece of wood. Instead, he told

11

Sa.G. that he had a vague recollection of S.G. telling him something, but that he could not

12

remember what it was. As with S.G., he does not mention anything about Cahuec hitting S.G. in

13

the crotch until 2013-15, long after the event. His declaration and testimony are not reliable.

14

E.

Cahuec has not demonstrated actual innocence

15

1.

Cahuec has not demonstrated actual innocence of lewdness with a

16

minor under 14

17

Cahuec rubbed S.G.'s genitals with his hand. If he did that "with the intent of arousing,

18

appealing to, or gratifying the lust or passions or sexual desires of that person or of that child,"

19

then he did a lewd or lascivious act, and he is guilty of lewdness with a minor. Nev. Rev. Stat.

20

§ 201.230 (1999). The issue for actual innocence of lewdness with a minor then is whether

21

Cahuec acted with the requisite intent.

22

The court has explained above why S.G.'s statements in 2013-15 are not reliable evidence

23

that Cahuec had hit her in the crotch with a 2x4 in 2003. S.G. also said in a declaration that

24

Cahuec's touching of her was not sexual. S.G. made no such statements of Cahuec's intent back

25

in 2003. However, a 14-year-old trying to remember what Cahuec's intent was when he touched

26

her at the age of 4 is not reliable evidence of Cahuec's intent. The memory is too attenuated.

27
28
22

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 23 of 26

1

The testimonies of everyone else regarding sexual intent merely derive from S.G.'s

2

statements. Those other people were not in the church's parking lot that night, so they were even

3

more removed from the events.

4

Cahuec's statement to the police points to the sexual intent necessary for lewdness.

5

Detective Chavez asked Cahuec, "Explain to me why you didn't just rub her outside of her shorts.

6

Why did you have to put your hand inside?" Cahuec responded, "I don't know. I don't know

7

what got into me. The truth. I can't tell you this, I don't know. But in that instant, I lifted

8

just . . ." Ex. 41 (ECF No. 17-42 at 25). Cahuec disputed the accuracy of that translation. He

9

hired an interpreter to translate the interview from the recording. In that unofficial translation, his

10

answer was, "I don'tt [sic] know, I don't know why I did it, really, I can't tell you that, if I don't

11

know, but at that moment I lifted her like that." Ex. 115 (ECF No. 74-4 at 37). Even that

12

translation does Cahuec no favors. When it came to the key question—why was he rubbing

13

S.G.'s genitals under her clothes?—he was at a loss for words. Cahuec did something he knew

14

that others saw as wrong—he stated that he lifted S.G. into the van to keep her and him out of

15

view of anyone else in the area—and he had no explanation why he did it.

16

The court needs to make a probabilistic determination. Based upon this evidence, the

17

court concludes that it is not more likely than not that any juror would have reasonable doubt.

18

Cahuec has not demonstrated actual innocence for lewdness with a minor to bypass the statute of

19

limitations.

20

2.

21

assault with a minor under 16

22

Cahuec has not demonstrated that he is actually innocent of sexual

The elements of sexual assault differ from lewdness. Sexual assault does not have an

23

element of sexual intent. Sexual assault does have the element of sexual penetration, which

24

lewdness specifically excludes. In this case, the disputed issue is whether Cahuec sexually

25

penetrated S.G.

26

The evidence given in 2003-04 supports a finding that Cahuec did sexually penetrate S.G.

27

On the evening of December 2, 2003, one of S.G.'s brothers noted that S.G. came into the church

28

looking disturbed, but not crying. The next morning, S.G. told her mother that it hurt to urinate.
23

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 24 of 26

1

Sa.G. looked at S.G.'s vagina, and she saw that it was reddish but without any blood. S.G. told

2

Sa.G. that Cahuec had touched her in her vagina and that the touching hurt. At the preliminary

3

hearing, S.G. testified that Cahuec had poked her in her vagina. A jury could infer from the

4

redness and the pain in urination that Cahuec had sexually penetrated S.G.

5

The medical evidence does not prove that Cahuec did not sexually penetrate S.G. but is

6

rather inconclusive. The medical records show, and Dr. Zbiegien testified, that no physical

7

evidence of penetration was present. However, Dr. Zbiegien testified that if the penetration did

8

not cause any physical injury, then any sign of penetration such as redness could have gone away

9

by the time he had examined S.G. He also testified that it was usual to "have a normal

10

examination in conjunction with touching." Ex. 114 at 33-34 (ECF No. 74-3 at 34-35). The

11

medical evidence is inconclusive on the question of actual innocence.

12

Based upon the reliable evidence, the court concludes that it is not more likely than not

13

that any reasonable juror would have reasonable doubt that Cahuec committed sexual assault.

14

Cahuec thus has not demonstrated actual innocence of sexual assault with a minor under 16

15

3.

16

degree kidnapping

17
18
19
20
21
22
23

Cahuec has not demonstrated that he is actually innocent of first-

1. A person who willfully seizes, confines, inveigles, entices, decoys, abducts,
conceals, kidnaps or carries away a person by any means whatsoever with the
intent to hold or detain, or who holds or detains, the person for ransom, or reward,
or for the purpose of committing sexual assault, extortion or robbery upon or from
the person, or for the purpose of killing the person or inflicting substantial bodily
harm upon the person, or to exact from relatives, friends, or any other person any
money or valuable thing for the return or disposition of the kidnapped person, and
a person who leads, takes, entices, or carries away or detains any minor with the
intent to keep, imprison, or confine the minor from his or her parents, guardians, or
any other person having lawful custody of the minor, or with the intent to hold the
minor to unlawful service, or perpetrate upon the person of the minor any unlawful
act is guilty of kidnapping in the first degree which is a category A felony.

24

Nev. Rev. Stat. § 200.310 (emphasis added). Cahuec has not demonstrated actual innocence for

25

either lewdness with a minor or sexual assault. Cahuec told Detective Chavez that he picked up

26

S.G. and put her into the van to conceal from passers-by could what he was doing. The evidence

27

thus shows that Cahuec concealed a person for the purpose of committing sexual assault, or that

28

Cahuec carried away or detained a minor to perpetrate upon the person the minor any unlawful
24

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 25 of 26

1

act. It is not more likely than not that any reasonable juror would have had reasonable doubt

2

about Cahuec's guilt. Cahuec has not demonstrated that he is actually innocent of first-degree

3

kidnapping.

4

V.

5

Conclusion
To appeal the denial of a petition for a writ of habeas corpus, Petitioner must obtain a

6

certificate of appealability, after making a "substantial showing of the denial of a constitutional

7

right." 28 U.S.C. §2253(c).

8

Where a district court has rejected the constitutional claims on the merits, the
showing required to satisfy §2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong. The issue becomes somewhat more
complicated where, as here, the district court dismisses the petition based on
procedural grounds. We hold as follows: When the district court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.

9
10
11
12
13
14

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79

15

(9th Cir. 2000). Ground 3 is a claim that Cahuec's plea was unknowing, unintelligent, and

16

involuntary. Ground 4 is a claim that Cahuec's trial counsel provided ineffective assistance

17

because she induced Cahuec to enter a plea that was unknowing, unintelligent, and involuntary.

18

Jurists of reason would find it debatable whether these are valid claims of the denial of

19

constitutional rights. Jurists of reason also would find it debatable whether Cahuec failed to

20

demonstrate actual innocence to bypass the time bar of 28 U.S.C. § 2244(d)(1). The court will

21

grant a certificate of appealability on that issue.

22

///

23

///

24

///

25

///

26

///

27

///

28

///
25

Case 3:09-cv-00113-RCJ-RAM Document 103 Filed 11/24/20 Page 26 of 26

1

IT THEREFORE IS ORDERED that respondents' motion to dismiss (ECF No. 94) is

2

GRANTED. This action is DISMISSED with prejudice because it is untimely. The clerk of the

3

court is directed to enter judgment accordingly and to close this action.

4

IT FURTHER IS ORDERED that a certificate of appealability is GRANTED on the issue

5

of whether Cahuec has failed to demonstrate actual innocence to bypass the time bar of 28 U.S.C.

6

§ 2244(d)(1).

7

DATED: November 24, 2020.

8

______________________________
ROBERT C. JONES
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26