Cahuec v. Smith et al

Filing 53

ORDER denying 47 and 49 Motions to Amend/Correct. Signed by Judge Robert C. Jones on 3/20/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HUGO ISRAEL CAHUEC,
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Petitioner,
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vs.
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GREGORY SMITH et al.,
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Respondents.
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3:09-cv-00113-RCJ-RAM
ORDER

Petitioner Hugo Cahuec is a prisoner in the custody of the Nevada Department of

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Corrections pursuant to conviction for sexual assault of a minor and kidnapping under Nevada

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law. Petitioner contends that his trial counsel was ineffective for advising him to accept a plea

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offer with minimal benefit and in light of weak evidence, for misrepresenting the terms of the

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plea agreement, and for failing to sufficiently investigate the case. In October 2010, the Court

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dismissed the First Amended Petition (“FAP”) for untimeliness. The Court of Appeals reversed

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and remanded, because although the Court was correct when it ruled that a claim of actual

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innocence could not equitably toll the one-year statute of limitations under 28 U.S.C. § 2244(d),

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see Lee v. Lampert (Lee I), 610 F.3d 1125, 1128–31 (9th Cir. 2010), the Court of Appeals had

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reversed the relevant precedent while the appeal from this Court’s dismissal order was pending,

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see Lee v. Lampert (Lee II), 653 F.3d 929, 932 (9th Cir. 2011) (en banc).

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The Court of Appeals did not rule that Petitioner had shown actual innocence, but only

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that he was “entitled to an opportunity to make a credible showing of actual innocence.”

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(See Mem. Op. 2, Mar. 29, 2012, ECF No. 37). The Court dismissed the FAP, finding that

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Petitioner had not shown actual innocence. The Court refused to consider a proffered statement

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from the victim’s mother because it was hearsay that could not have been admitted at trial. The

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Court also refused to subpoena the medical providers who had examined the victim, because

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although they might have been able to corroborate Petitioner’s claim that he did not penetrate the

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victim and therefore could not have been found guilty of sexual assault, that would do nothing to

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cast doubt upon the victim’s testimony (and Petitioner’s admission) at the preliminary hearing

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that Petitioner had in fact touched the victim’s genitalia in a way sufficient to support a

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conviction for lewdness with a minor—a charge that was dropped in exchange for the guilty

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pleas—and in the plea bargain context an actual innocence claim must indicate innocence not

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only of the offenses allocuted to but also to any offenses dismissed in exchange. Nor would

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testimony of the medical providers provide any relevant evidence as to Petitioner’s state of mind

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with respect to the touching. The testimony of the medical providers, even assuming it would

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show what Petitioner claimed it would, would not have made it more likely than not that no

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reasonable juror could have found petitioner guilty of lewdness with a child under the age of

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fourteen (the charge dismissed pursuant to the plea agreement). The Court contemporaneously

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issued a certificate of appealability.

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Petitioner has asked the Court to reconsider because it did not hold an evidentiary hearing

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but relied on information already in the record. Petitioner has also asked for leave to file a

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second amended petition. The Court denies those motions. The Court considered the actual

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innocence exception to the statute as instructed and found that the proffered evidence could not

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aid him. The additional evidence proffered by Petitioner—that the victim did not believe the

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touching was sexual—would not have made it more likely than not that no reasonable juror could

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have found petitioner guilty of lewdness with a child under the age of fourteen. A reasonable

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juror could conclude that the four-year-old child was lying out of shame or fear or had simply

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been too immature and/or trusting to comprehend the nature of or motivation behind Petitioner’s
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actions. A four-year-old child’s putative testimony that a touching was “not sexual” would

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barely be relevant on the question at all (except as to pure mechanics), as a four-year-old child

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does not have the intellectual capability to recognize whether a touching is “sexual.” And a

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child’s testimony almost ten years later—after reaching an age at which the child can distinguish

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between sexual and non-sexual touching—recounting a incident occurring at age four is not

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likely to be very accurate on the question because the child must draw a conclusion of the other

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person’s motivation based upon a vague memory from early childhood. The letter Petitioner

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adduces from the victim’s father in fact recognizes that his daughter could not at the time of the

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incident tell the difference between sexual and non-sexual touching. That letter otherwise casts

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no doubt upon Petitioner’s motivations but only confirms that the victim’s father himself did not

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suspect a sexual assault. In summary, the victim’s letter written at age thirteen that she did not

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perceive a touching that occurred at age four as sexually motivated is not very helpful to

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determining whether the touching was in fact sexually motivated. It is certainly not enough to

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show that it is more likely than not that no reasonable juror could have found Petitioner guilty.

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The Court appreciates that the present case does not present an egregious example of the

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crimes charged., but a prosecutor has discretion to charge cases qualifying as offenses under the

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statute even if they are not textbook examples of the relevant offenses. Mitigation is relevant to

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sentencing, not conviction. A reasonable jury could have found Petitioner guilty of at least the

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dismissed charge.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motions (ECF Nos. 47, 49) are DENIED.

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IT IS SO ORDERED.

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Dated this 20th day of March, 2014.

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_____________________________________
ROBERT C. JONES
United States District Judge
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