DeCastro v. LeGrand et al

Filing 46

ORDER denying in its entirety ECF No. 31 Amended Petition; denying a certificate of appealability; directing Clerk to enter judgment and close case. Signed by Judge Robert C. Jones on 1/15/2019. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CASTRO V. DECASTRO,

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Case No. 3:14-cv-00529-RCJ-WGC
Petitioner,

ORDER

v.
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ROBERT LEGRAND, et al.,
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Respondents.
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This 28 U.S.C. § 2254 petition for writ of habeas corpus by Nevada state prisoner

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Castro V. DeCastro is before the court for final disposition on the merits (ECF No. 31).

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As discussed below, DeCastro’s petition is denied.

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I.

Procedural History and Background

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As this court set forth in its order denying respondents’ motion to dismiss (ECF No.

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36), on September 4, 2009, a jury convicted DeCastro of count 1: sexual assault of a

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minor under age 14; count 3: lewdness with a child under age 14; and count 4:

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attempted sexual assault of a minor under age 14 (exhibit 54).1 The state district court

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sentenced him as follows: count 1 - life with the possibility of parole after 240 months;

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count 3 – life with the possibility of parole after 120 months, to run concurrently with

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count 1; and count 4 – 96 months with the possibility of parole after 38 months, to run

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consecutively to counts 1 and 3. Exh. 58. Judgment of conviction was entered on

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December 7, 2009. Id.

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Except where otherwise noted, the exhibits referenced in this order are exhibits to respondents’ first motion
to dismiss, ECF No. 11, and are found at ECF Nos. 12-17.
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The Nevada Supreme Court affirmed DeCastro’s convictions on February 24, 2012,
and remittitur issued on March 20, 2012. Exhs. 100, 101.
DeCastro filed a counseled state postconviction petition for habeas corpus on
August 22, 2012. Exhs. 104, 105. The state district court denied the petition on April 2,
2013. Exh. 118. On June 11, 2014, the Nevada Supreme Court affirmed the denial of
the petition, and remittitur issued on July 8, 2014. Exh. 134.
On October 10, 2014, DeCastro dispatched his federal habeas petition for filing
(ECF No. 4). Ultimately, this court appointed the Federal Public Defender as counsel
for DeCastro, and DeCastro filed a counseled first-amended petition on January 29,
2016 (ECF No. 31). Respondents have answered the petition (ECF No. 43), and
DeCastro replied (ECF No. 44).
II.

Antiterrorism and Effective Death Penalty Act (AEDPA) Legal Standard
The AEDPA provides the legal standards for this court’s consideration of the

petition in this case:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim ―
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). The AEDPA “modified a federal habeas court’s role in reviewing
state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that
state-court convictions are given effect to the extent possible under law.” Bell v. Cone,
535 U.S. 685, 693-694 (2002). This Court’s ability to grant a writ is limited to cases
where “there is no possibility fair-minded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86,

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102 (2011). The Supreme Court has emphasized “that even a strong case for relief
does not mean the state court's contrary conclusion was unreasonable.” Id. (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S.
170, 181 (2011) (describing the AEDPA standard as “a difficult to meet and highly
deferential standard for evaluating state-court rulings, which demands that state-court
decisions be given the benefit of the doubt”) (internal quotation marks and citations
omitted).
A state court decision is contrary to clearly established Supreme Court
precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state
court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [the Supreme
Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,
405-06 (2000), and citing Bell, 535 U.S. at 694.
A state court decision is an unreasonable application of clearly established
Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court
identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538
U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause
requires the state court decision to be more than incorrect or erroneous; the state
court’s application of clearly established law must be objectively unreasonable. Id.
(quoting Williams, 529 U.S. at 409).
To the extent that the state court’s factual findings are challenged, the
“unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas
review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause
requires that the federal courts “must be particularly deferential” to state 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. Rather, AEDPA requires
substantially more deference:

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.... [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.

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Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393
F.3d at 972.

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Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be
correct unless rebutted by clear and convincing evidence. The petitioner bears the
burden of proving by a preponderance of the evidence that he is entitled to habeas
relief. Cullen, 563 U.S. at 181.
III.

Amended Petition
Ground 1
DeCastro argues that his trial counsel was ineffective in violation of his Sixth and

Fourteenth Amendment rights when counsel failed to adequately advise DeCastro of
the terms of his plea and the dangers of non-acceptance of the State’s plea offer (ECF
No. 31, pp. 14-16). Ineffective assistance of counsel claims are governed by the twopart test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland,
the Supreme Court held that a petitioner claiming ineffective assistance of counsel has
the burden of demonstrating that (1) the attorney made errors so serious that he or she
was not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that
the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362,
390-91 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the
defendant must show that counsel’s representation fell below an objective standard of
reasonableness. Id. To establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different. Id. A reasonable probability is “probability
sufficient to undermine confidence in the outcome.” Id. Additionally, any review of the
attorney’s performance must be “highly deferential” and must adopt counsel’s
perspective at the time of the challenged conduct, in order to avoid the distorting effects
of hindsight. Strickland, 466 U.S. at 689. It is the petitioner’s burden to overcome the
presumption that counsel’s actions might be considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient
performance of counsel resulting in prejudice, “with performance being measured
against an objective standard of reasonableness, . . . under prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations
omitted).
If the state court has already rejected an ineffective assistance claim, a federal
habeas court may only grant relief if that decision was contrary to, or an unreasonable
application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id.
The United States Supreme Court has described federal review of a state
supreme court’s decision on a claim of ineffective assistance of counsel as “doubly
deferential.” Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411,
1413 (2009)). The Supreme Court emphasized that: “We take a ‘highly deferential’ look
at counsel’s performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403
(internal citations omitted). Moreover, federal habeas review of an ineffective
assistance of counsel claim is limited to the record before the state court that
adjudicated the claim on the merits. Cullen, 563 U.S. at 181-84. The United States
Supreme Court has specifically reaffirmed the extensive deference owed to a state
court's decision regarding claims of ineffective assistance of counsel:

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Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
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created by Strickland and § 2254(d) are both “highly deferential,” id. at 689,
104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059,
138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is
“doubly” so, Knowles, 556 U.S. at ––––, 129 S.Ct. at 1420. The Strickland
standard is a general one, so the range of reasonable applications is
substantial. 556 U.S. at ––––, 129 S.Ct. at 1420. Federal habeas courts
must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is whether there is any reasonable argument that
counsel satisfied Strickland's deferential standard.
Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance
of counsel must apply a ‘strong presumption’ that counsel’s representation was within
the ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland,
466 U.S. at 689). “The question is whether an attorney’s representation amounted to
incompetence under prevailing professional norms, not whether it deviated from best
practices or most common custom.” Id. (internal quotations and citations omitted).
Here, after a jury convicted him, DeCastro was sentenced to serve 20 years to
life, a concurrent term of 10 years to life, and a term of 38 to 96 months, consecutive to
the first two terms (ECF No. 31, pp. 14-16). He stated that his prior counsel, Mark
Cichoski, negotiated a deal with the State wherein DeCastro would plead guilty to two
counts of attempt lewdness, each carrying a sentence of 5 to 20 years, and the State
reserved the right to argue for consecutive or concurrent sentences. He claims that
counsel “failed to fully explain the mandatory sentencing” and that DeCastro “felt afraid,
bullied, and did not understand the situation he was in.” Id. at 16.
In affirming the denial of this claim in his state postconviction petition, the Nevada
Supreme Court explained:

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Appellant claims that counsel attempted to coerce him into pleading
guilty but also did not explain the consequences of going to trial and what
the mandatory minimums would have been if he were convicted of all
charges. Appellant fails to demonstrate that counsel was deficient. First,
appellant did not plead guilty. Further, appellant does not explain what
coercive tactics counsel used to attempt to coerce appellant into taking the
plea agreement. Therefore, the district court did not err in denying this
claim.
Exh. 61, pp. 3.
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The record reflects the following. In November 2006, DeCastro was present at
the waiver of the preliminary hearing, and his counsel told the justice of the peace that a
deal was being negotiated for DeCastro to plead guilty to one count of lewdness with a
minor under 14. Exh. 4. The court asked DeCastro if he understood the deal, and he
responded “Yes, sir.” Defense counsel then informed the court that DeCastro
understood that the punishment was 10 to life. The court told DeCastro that it was
DeCastro’s decision whether to accept or reject the plea agreement when he appeared
in state district court. Id.

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The court minutes indicate that the matter was continued twice at the end of
November because DeCastro, who is Filipino, wanted an interpreter. Exh. 8, pp. 2-5.
Then in December, defense counsel advised the court that DeCastro wanted to
withdraw from the plea negotiations; counsel also moved to withdraw. In May 2007,
newly-appointed counsel Cichoski informed the court that the matter had been
negotiated, but that DeCastro had questions about the deal, and Cichoski requested a
continuance. In these federal habeas proceedings DeCastro has presented for the first
time as exhibits a May 2007 email exchange between the prosecutor and Cichoski that
indicates that the State offered two terms of 5-20 years, retaining the right to argue for
consecutive or concurrent (exhibits 63, 64 to petitioner’s first-amended petition).2 Two
days later, defense counsel informed the court that DeCastro had rejected the State’s
offer and wished to proceed to trial. Id. at 4-5.

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DeCastro filed a pro se motion to dismiss counsel and appoint alternate counsel
in state district court in October 2007. Exh. 23. He stated that counsel was repeatedly
using “bully boy” tactics to force DeCastro into a plea agreement for two terms of 5 to 20
years. He stated that counsel told him that if he did not sign the plea agreement, he
would spend the rest of his life in prison. DeCastro states that even though he was

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Inexplicably, the parties have filed separate, largely duplicative, sets of exhibits in this matter and have
numbered them separately. Petitioner’s exhibits are exhibits to his first-amended petition, ECF No. 31, and
are found at ECF Nos. 32-34. They will be referred to as Pet. exh.

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scared and confused he refused the plea agreement. He also alleged that counsel then
stopped communicating with DeCastro when he refused to accept the plea agreement.
He alleged that at a calendar call the “leader” of the public defenders approached him
and used the same bullying tactics.
The State faxed a plea offer to DeCastro’s next public defender, James Ruggeroli,
on November 17, 2008. Pet. exh. 52, p. 33. That offer provided that DeCastro would
enter an Alford plea to sexual assault with a minor under the age of 16 and attempted
lewdness with a child under the age of fourteen and both parties would “stipulate to a
prison term of twenty (20) years with eligibility for parole after five (5) years on each
count.” Id. at 35. The guilty plea agreement specifically stated that the consequences of
a plea of guilty to sexual assault with a minor under the age of 16 was “life in the
Nevada Department of Corrections with the possibility of parole with parole eligibility
beginning at twenty (20) years or definite term of twenty (20) years with parole eligibility
beginning at five (5) years.” Id. at 36. DeCastro did not accept that deal. See exh. 46,
p. 22. Respondents point out that that that written plea deal set out the mandatory
minimums for sexual assault with a minor under the age of sixteen.
As trial was about to commence, the State indicated that the offer of 10 to life was
available. Exh. 46, p. 22. The court asked defense counsel about the offer, and
counsel stated: “the interpreter stated that [DeCastro] already turned down the lesser
charge that was available.”
Respondents point out that DeCastro has improperly presented the May 2007
email exchange between the prosecutor and defense counsel to this federal court when
he never provided it in his state proceedings. Respondents are correct; however, the
email exchange is merely cumulative of other exhibits that set forth the plea deal. In
any event, DeCastro’s claim in federal ground 1 is inconsistent. He acknowledges that
his counsel urged him, even “bullied” him to take the plea deal, telling him that if he
went to trial he would spend the rest of his life in prison. Yet he also now claims that he

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was unaware of the full consequences of the plea deal and the potential mandatory
minimums, and that if he had been aware of the full consequences, he would have
taken the deal. This ground is belied by the record.
DeCastro has failed to demonstrate that the Nevada Supreme Court’s decision on
federal ground 1 is contrary to, or involves an unreasonable application of, Strickland, or
was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. 28 U.S.C. § 2254(d). Accordingly, ground 1 is
denied.
Ground 2
DeCastro asserts that insufficient evidence supported his conviction for attempted
sexual assault with a minor under the age of 14 (ECF No. 31, pp. 16-18).
“The Constitution prohibits the criminal conviction of any person except upon proof
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309 (1979)
(citing In re Winship, 397 U.S. 358 (1970)). On federal habeas corpus review of a
judgment of conviction pursuant to 28 U.S.C. § 2254, the petitioner “is entitled to
habeas corpus relief if it is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. at
324. “[T]he standard must be applied with explicit reference to the substantive elements
of the criminal offense as defined by state law.” Id. at 324 n.16. On habeas review, this
court must assume that the trier of fact resolved any evidentiary conflicts in favor of the
prosecution and must defer to such resolution. Id. at 326. Generally, the credibility of
witnesses is beyond the scope of a review of the sufficiency of the evidence. Schlup v.
Delo, 513 U.S. 298, 330 (1995).
Nevada Revised Statute § 193.330(1) states “[a]n act done with the intent to commit
a crime, and tending but failing to accomplish it, is an attempt to commit that crime.”
NRS § 200.366 states a sexual assault occurs when:

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[a] person subjects another person to sexual penetration, or who
forces another person to make a sexual penetration on himself or herself .
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. . 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 or her conduct . . . .

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The third amended information charged DeCastro with attempt sexual assault with a
minor under the age of fourteen. Exh. 51, p. 3. In particular, the Information alleged:

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[DeCastro] did then and there willfully, unlawfully, and feloniously
attempt [to] sexually assault and subject [MK] . . . to sexual penetration, to
wit: fellatio, by [DeCastro] attempting to cause the said [MK] to lick his
exposed penis, against her will, or under conditions in which [DeCastro]
knew, or should have known, that said [MK] was mentally or physically
incapable of resisting or understanding the nature of [DeCastro’s] conduct.

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Id.
At trial the victim testified to specific incidents; she said that during the first incident

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DeCastro pushed her down on the carpet in his home, “French” kissed her mouth, neck

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and breasts, and reached under her shirt to fondle her breasts while she tried to push

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him off her. Exh. 49, pp. 25-26. She stated that another time they were on the couch

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watching a movie and he grabbed her hand and made her touch his penis and

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masturbate him. Then he got on top of her and tried to pull her shorts down; when she

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said no and tried to pull them up, he got up and left the room. Id. at 29-31. The victim

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testified that DeCastro made her lie down on the tile floor, and he pulled her shorts

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down and began licking her vagina. Id. at 32. She stated that another time he chased

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her into the bathroom, forced her to the floor and began licking and fondling her breasts.

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Id. at 33. She testified that once when they were playing cards in the kitchen DeCastro

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pulled his penis out of his pants, wiggled it around and told her to touch it or lick it.

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When she said no, he said that he had only been joking and put it back in his pants.

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Then she left. Id. at 34

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DeCastro argues that the victim’s testimony about the kitchen incident was

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insufficient to support the conviction for attempted sexual assault (ECF No. 31, pp. 16-

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18). Affirming DeCastro’s convictions, the Nevada Supreme Court discussed this claim

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at some length:

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Sufficiency of the evidence requires determining "whether the jury,
acting reasonably, could have been convinced beyond a reasonable doubt
of the defendant’s guilt by the competent evidence," Estes v. Park, 122
Nev. 1123, 1144; 146 P.3d 1114, 1128 (2006). Evidence is viewed "in the
light most favorable to the prosecution," with the question being "whether
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Id. It is the province of the jury to
determine the weight and credibility of conflicting evidence. Id.
"[T]o prove attempted sexual assault, the prosecution must establish
that (1) appellant intended to commit sexual assault; (2) appellant
performed some act toward the commission of the crime; and (3) appellant
failed to consummate its commission." Bell v. State, 105 Nev. 352, 954,
775 P.2d 1273, 1274 (1989).
DeCastro notes that the information charged DeCastro with attempted
sexual assault with a minor under the age of fourteen because DeCastro
attempted to sexually assault the victim by attempting to have her perform
sexual acts. DeCastro points out that the victim testified that after
DeCastro asked her to perform sexual acts and she declined, DeCastro
said he was just joking and put his penis back in his pants. DeCastro
argues that no other action was taken towards "sexual penetration," in
which there was no show of force or intimidation, and he suggests that
there was no intent to complete the sexual assault. DeCastro contends
that if his conviction for attempted sexual assault stands, any stereotypical
flasher could be charged with attempted sexual assault for any repeated
instance of flashing his private parts to a single individual.
However, the circumstances of the case and the prior sexual abuse of
the victim support the notion that DeCastro had a clear design to convince
the victim to perform fellatio upon him. The prior sexual interactions,
combined with the attempted fellatio, allowed a reasonable jury to
conclude beyond a reasonable doubt that DeCastro had the intent to
commit a sexual assault upon the victim sufficient to sustain a guilty
verdict. We conclude that the evidence was sufficient for a jury to
determine beyond a reasonable doubt that DeCastro attempted to have
the victim perform fellatio on him.
Exh. 100, pp. 10-12.
DeCastro asserts that the Nevada Supreme Court made an unreasonable
determination of fact because the victim did not establish a chronological timeframe for
the various incidents (ECF No. 44, p. 16). He argues that the State did not establish
that there were “prior sexual interactions” to this specific event, as presumed by the
state supreme court. DeCastro is correct that a specific order of occurrence for all of
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the incidents was not necessarily established at trial. However, the State specifically
asked the victim to describe the first time that DeCastro abused her. She testified that
the first time, she was walking from DeCastro’s kitchen to the living room when he
pushed her down on the carpet, “French” kissed her mouth, neck and breasts, and
reached under her shirt to fondle her breasts while she tried to push him off her. Exh.
49, pp. 25-26. Thus, the victim’s testimony reflects that the incident when DeCastro
pulled out his penis and asked her to touch it or lick it was not the first incident of abuse,
and the testimony undermines DeCastro’s argument that at most his actions amounted
to indecent exposure. Considering the entirety of the victim’s testimony, it cannot be
said that no rational trier of fact could have found proof of guilt beyond a reasonable
doubt of attempted sexual assault.
The court concludes that DeCastro has not shown that the Nevada Supreme Court’s
decision on federal ground 2 is contrary to, or involves an unreasonable application of,
clearly established federal law, as determined by the U.S. Supreme Court, or was
based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d). Accordingly, ground 2 is denied.
IV.

Certificate of Appealability

This is a final order adverse to the petitioner. As such, Rule 11 of the Rules
Governing Section 2254 Cases requires this court to issue or deny a certificate of
appealability (COA). Accordingly, the court has sua sponte evaluated the claims within
the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.
Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has
made a substantial showing of the denial of a constitutional right." With respect to
claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463

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U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
jurists could debate (1) whether the petition states a valid claim of the denial of a
constitutional right and (2) whether the court's procedural ruling was correct. Id.
Having reviewed its determinations and rulings in adjudicating DeCastro’s petition,
the court finds that none of those rulings meets the Slack standard. The court therefore
declines to issue a certificate of appealability for its resolution of either of DeCastro’s
claims.
V.

Conclusion

IT IS THEREFORE ORDERED that the amended petition (ECF No. 31) is DENIED
in its entirety.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.

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DATED: 15 January 2019.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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