Garcia v. Garrett

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

4 RAUL GARCIA, Case No. 3:22-cv-00332-ART-CSD

5 Petitioner, ORDER v. 6 TIM GARRETT, et al., 7 Respondents. 8 9 This habeas matter is brought by Petitioner Raul Garcia under 28 U.S.C. 10 §2254. Respondents filed a Motion to Dismiss (ECF No. 20) the first amended 11 petition as untimely and unexhausted. Also before the Court is Respondents’ 12 Motion to Seal (ECF No. 23). For the reasons discussed below, the Court grants 13 Respondents’ motion to dismiss and their motion to seal. 14 I. Background 15 In October 2000, Garcia was charged with one count of sexual assault on 16 a child under the age of fourteen for sexual penetration of A.K.G., a ten-year-old 17 girl, by putting his finger inside the victim’s vagina; one count of lewdness with a 18 child under the age of fourteen years for pulling down the victim’s pants and/or 19 underwear and touching the victim’s vagina with his tongue; and one count of 20 lewdness with a child under the age of fourteen years for unzipping his pants and 21 pulling the hand of A.K.G toward his exposed penis in an attempt to get her to 22 touch his penis. ECF No. 21-7. 23 In March 2001, following a two-day jury trial, Garcia was convicted of one 24 count of sexual assault on a child under the age of fourteen and two counts of 25 lewdness with a child under the age of fourteen years. ECF No. 21-21. The state 26 court sentenced Garcia to an aggregate term of 40 years to life. Id. The Nevada 27 Supreme Court affirmed the conviction. ECF No. 21-37. 28 In July 2012, Garcia filed a pro se state postconviction habeas petition and 1 the state district court denied his habeas petition. ECF Nos. 22-6, 22-9. Garcia 2 did not file an appeal. In September 2012, Garcia filed a second state 3 postconviction habeas petition that was denied. ECF Nos. 22-13, 22-14. Garcia 4 did not appeal the denial of his second state postconviction habeas petition. 5 In December 2019, Garcia filed a motion to correct an illegal sentence 6 arguing that the consecutive sentence on Count 2, a lewdness count, was illegally 7 imposed because it was redundant to the sexual assault. ECF No. 22-17. The 8 state court construed Garcia’s motion as a third state postconviction habeas 9 petition and denied it as procedurally barred. ECF No. 22-32. On appeal, the 10 Nevada Supreme Court found that the state court erred in construing his motion 11 as a postconviction petition, but nonetheless found Garcia was not entitled to 12 relief. ECF No. 22-50. 13 On July 25, 2022, Garcia initiated the instant federal habeas matter. ECF 14 No. 1-1. Following the appointment of counsel, Garcia filed his first amended 15 petition. ECF No. 17. Respondents move to dismiss the first amended petition as 16 untimely and argue that Grounds 1, 2, 3 are untimely and unexhausted. ECF 17 No. 20. Garcia acknowledges that the petition is untimely. He argues that 18 Grounds 1, 2, and 3 should be considered technically exhausted, but 19 procedurally defaulted. He further argues that he can overcome any procedural 20 hurdles because he can demonstrate that he is actually innocent of the Count 2 21 lewdness charge on the basis that the Nevada Supreme Court narrowed the 22 interpretation of the lewdness statute. ECF No. 25 at 2. 23 II. Discussion 24 a. Actual Innocence Legal Standard 25 A convincing showing of actual innocence may enable habeas petitioners 26 to overcome a procedural bar to consideration of the merits of their constitutional 27 claims. Schlup v. Delo, 513 U.S. 298, 314–16 (1995). “[A]ctual innocence, if 28 proved, serves as a gateway through which a petitioner may pass whether the 1 impediment is a procedural bar [or] expiration of the statute of limitations.” 2 McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (citation omitted). “[I]f a petitioner 3 ... presents evidence of innocence so strong that a court cannot have confidence 4 in the outcome of the trial unless the court is also satisfied that the trial was free 5 of nonharmless constitutional error, the petitioner should be allowed to pass 6 through the gateway and argue the merits of his underlying claims.” Schlup, 513 7 U.S. at 316. 8 To demonstrate actual innocence, “a petitioner must show that, in light of 9 all the evidence, including evidence not introduced at trial, ‘it is more likely than 10 not that no reasonable juror would have found [him] guilty beyond a reasonable 11 doubt’.” Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002) (quoting Schlup, 513 12 U.S. at 316). Put another way, “actual innocence” is established when, in light of 13 all the evidence, “it is more likely than not that no reasonable juror would have 14 convicted [the petitioner].” Bousley v. United States, 523 U.S. 614, 623 (1998) 15 (quoting Schlup, 513 U.S. at 327-28). The petitioner must establish factual 16 innocence of the crime, and not mere legal insufficiency. Id.; Jaramillo v. Stewart, 17 340 F.3d 877, 882-83 (9th Cir. 2003). 18 “One way a petitioner can demonstrate actual innocence is to show in light 19 of subsequent case law that he cannot, as a legal matter, have committed the 20 alleged crime.” Vosgien v. Perrson, 742 F.3d 1131, 1134 (9th Cir. 2014). In 21 Vosgien, the Ninth Circuit held that a habeas petitioner convicted of several 22 crimes, including “compelling prostitution” based on his acts of bribing his 23 daughter to procure sexual favors for himself, could establish his actual 24 innocence where the State conceded that, in light of state case law issued after 25 his conviction interpreting the compelling prostitution statute to apply only to 26 defendants who induced someone to engage in prostitution with third parties, the 27 petitioner could not have committed the alleged crime of compelling prostitution 28 based on the facts under which he was convicted. See 742 F.3d at 1136. 1 However, the Supreme Court has cautioned that “tenable actual-innocence 2 gateway pleas are rare. McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 3 329); House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that the Schlup 4 standard is “demanding” and seldom met). This is a particularly exacting 5 standard, one that will be satisfied “only in the extraordinary case.” House v. Bell, 6 547 U.S. 518, 538 (2006). Indeed, cases where the actual innocence gateway 7 standard has been satisfied have “typically involved dramatic new evidence of 8 innocence.” Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013). 9 b. Subsequent Case Law 10 Garcia relies on Gaxiola v. State, 119 P.3d 1225, 1235 (Nev. 2005), 11 asserting that he is actually innocent of Count 2, the lewdness count based on 12 pulling down the victim’s pants and/or underwear and touching the victim’s 13 vagina with his tongue, because the Nevada Supreme Court narrowed the 14 interpretation of the lewdness statute. In Gaxiola, the Nevada Supreme Court 15 held that, under NRS 201.230, the State was required to prove beyond a 16 reasonable doubt that the lewdness was an act other than a sexual assault. The 17 Nevada Supreme Court concluded that the State has the burden, at trial, to show 18 that the lewdness was not incidental to the sexual assault. Id. 19 The State can establish that an act of lewdness is not incidental to a 20 subsequent sexual assault, and obtain convictions for both crimes, by presenting 21 evidence of an interruption between the two acts. See, e.g., Townsend v. State, 22 734 P.2d 705, 710 (1987) (where evidence indicated that the defendant stopped 23 fondling the child’s breasts before digitally penetrating her, the acts were separate 24 and distinct); Wright v. State, 799 P.2d 548, 549-50 (1990) (where evidence 25 indicated that defendant stopped an attempted sexual assault when a car passed 26 and then resumed the sexual assault after the car was gone, the acts were 27 separate and distinct). 28 When the State fails to present evidence of any interruption between an act 1 of lewdness and a subsequent sexual assault, a defendant may not be convicted 2 of both crimes. See, e.g., Crowley v. State, 83 P.3d 282, 285-86 (2004) (reversing 3 redundant lewdness conviction where there was no interruption between 4 defendant’s act of touching and rubbing the victim’s penis and the subsequent 5 fellatio); Ebeling v. State, 91 P.3d 599, 602 (2004) (reversing redundant lewdness 6 conviction where defendant’s act of rubbing his penis against victim’s buttocks 7 was incidental to penetration and not a separate act); Gaxiola, 119 P.3d at 1235 8 (reversing lewdness conviction where there was no “evidence regarding the 9 sequence of events and under what circumstances the lewdness occurred. The 10 child only indicated Gaxiola fondled the child’s penis” and “did not indicate if this 11 occurred on a separate day or time frame from the child’s statement that Gaxiola 12 placed the child’s penis in Gaxiola’s mouth”). 13 c. Evidence Presented at Trial 14 At trial, the victim, A.K.G, testified that she was in her room drawing on 15 her bed when Garcia entered her room. ECF No. 21-14 at 30-33. He got on his 16 knees on the floor, grabbed A.K.G.’s legs, and tried to pull her underwear and 17 shorts down. Id. at 33. She tried to push him away and pull her shorts up. Id. at 18 33-34. Garcia held A.K.G.’s legs together with his knees and put his pointer finger 19 in her private spot, which A.K.G. later identified as her vaginal area. Id. at 34-38. 20 She testified that it hurt. Id. at 38. 21 After she pulled her shorts up and attempted to leave the room, Garcia got 22 up and shut the door. Id. at 39-40. A.K.G. fell back onto her sister’s bed that was 23 in the same room and closest to the door, Garcia got on top of her and tried to 24 kiss her on the mouth. Id. A.K.G. moved her head so that he could not kiss her. 25 Id. at 41. Garcia stood up and A.K.G. tried to open the door, but Garcia closed it. 26 Id. After closing the door, Garcia unzipped his pants, exposed his private parts, 27 grabbed A.K.G.’s hand and tried to force A.K.G. to touch his penis. Id. at 42-43. 28 A.K.G. also testified as to Garcia’s attempt to lick A.K.G.’s private spot that 1 occurred on the same day in A.K.G.’s room. Id. at 44. She testified that she 2 thought he attempted to lick her private spot before the finger incident. Id. She 3 testified that “he tried to pull my-my legs. He tried to go like this, and he tried to 4 put his head in and started licking it.” Id. at 45. On cross-examination, the 5 defense questioned A.K.G about her testimony at the preliminary hearing and 6 she testified that she did not remember saying that Garcia used his tongue after 7 the finger incident. Id. at 72. 8 Garcia left A.K.G.’s room but returned. Id. at 48-49. A.K.G was in her closet 9 when he returned, he grabbed her, and tried to pull her shorts down from behind. 10 Id. A.K.G. pulled her shorts up and Garcia tried to push her head down. Id. at 11 53. During this incident in the closet, A.K.G.’s father entered the room. Id. at 54. 12 d. Preliminary Hearing Testimony 13 At the preliminary hearing, A.K.G. testified that Garcia pulled her shorts 14 and underwear down and put his finger in her private spot. ECF No. 21-4 at 13. 15 When he stopped, she pulled her shorts back up. Id. at 14. Garcia then pulled 16 her shorts back down and put his tongue on her private spot. Id. 17 e. Analysis 18 In light of the totality of the evidence and applicable Nevada caselaw, the 19 Court concludes that Garcia fails to make a sufficient showing of actual 20 innocence. Garcia has not established that no reasonable juror, viewing the 21 record as a whole, could have found him guilty of Count 2. Despite testifying that 22 she “wasn’t sure” if the licking incident happened before the finger incident, the 23 victim child testified at trial that after Garcia pulled her shorts down, he held her 24 legs together with his knees and put his pointer finger in her vagina. ECF No. 21- 25 14 at 34-38, 73. She further testified at trial that during the licking incident, 26 “[Garcia] tried to pull my-my legs. He tried to go like this, and he tried to put his 27 head in and started licking it.” Id. at 45. Based on this testimony, the jury could 28 have appropriately convicted Garcia on the lewdness count and sexual assault 1 count by determining that the touching was separate and distinct as opposed to 2 a continuous act merged with sexual assault. See Gaxiola, 119 P.3d at 1235. 3 In addition, the victim child’s preliminary hearing testimony provides 4 sufficient evidence of separateness such that a rational juror could reasonably 5 find two separate crimes. Actual innocence review incorporates “all evidence,” 6 including (i) evidence alleged to have been improperly admitted (but with due 7 regard to its questionable reliability), (ii) evidence the defense did not present to 8 the jury at trial, or (iii) evidence that became available only after the trial. Griffin 9 v. Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003) (citing Schlup, 513 U.S. at 327- 10 28). Garcia has not shown that Nevada case law issued after his convictions 11 rendered his conduct non-criminal. See Vosgien, 742 F.3d at 1134. The Court 12 does not find that the record in this case contains “evidence of innocence so 13 strong” that the Court cannot have confidence in the outcome of the state court 14 proceeding. Schlup, 513 U.S. at 316. Garcia’s gateway claim of actual innocence 15 fails. Accordingly, the Court grants Respondents’ motion to dismiss and the first 16 amended petition is dismissed as untimely. 17 III. Motion to Seal 18 Respondents seek leave to file under seal two documents (ECF No. 23): 19 Exhibit 20, Petitioner’s Presentence Investigation Report (“PSI”) and psychological 20 and substance abuse evaluation (ECF No. 24-1). Under Nevada law, the PSI is 21 “confidential and must not be made a part of any public record.” Nev. Rev. Stat. 22 § 176.156(5). 23 Having reviewed and considered the matter in accordance with Kamakana 24 v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and its progeny, 25 the Court finds that a compelling need to protect the petitioner’s safety, privacy, 26 and/or personal identifying information outweighs the public interest in open 27 access to court records. Accordingly, Respondents’ motion to seal is granted, and 28 Exhibit 20 is considered properly filed under seal. 1 IV. Certificate of Appealability 2 Rule 11 of the Rules Governing Section 2254 Cases requires the Court to 3 || issue or deny a certificate of appealability (“COA”). Pursuant to 28 U.S.C. § 4 || 2253(c)(2), a COA may issue only when the petitioner “has made a substantial 5 || showing of the denial of a constitutional right.” With respect to claims rejected on 6 || the merits, a petitioner “must demonstrate that reasonable jurists would find the 7 || district court’s assessment of the constitutional claims debatable or wrong.” Slack 8 || v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 9 || 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable 10 || jurists could debate (1) whether the petition states a valid claim of the denial of 11 || a constitutional right and (2) whether this Court’s procedural ruling was correct. 12 || Id. Applying these standards, this Court finds that a certificate of appealability is 13 || unwarranted. 14 V. Conclusion 15 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 20) is 16 || granted. The petition is dismissed with prejudice as untimely. 17 It is further ordered that a certificate of appealability is denied, as 18 || reasonable jurists would not find the district court’s dismissal of the federal 19 || petition to be debatable or wrong, for the reasons discussed herein. 20 It is further ordered that Respondents’ Motion to Seal (ECF No. 23) is 21 || granted. Exhibit 20 is considered properly filed under seal. 22 It is further ordered that the Clerk of the Court is instructed to enter final 23 || judgment accordingly and close this case. 24 Dated this 24th day of September 2024. 25 26 Ans pled 7d 27 ANNE R. TRAUM 28 UNITED STATES DISTRICT JUDGE