Barraza v. Gentry

• Decision Date: 02 August 2017
• Docket Number: 2:14-cv-01185-APG-PAL
• Parties: JESSICA BARRAZA, Petitioner, v. J. GENTRY, et al., Respondents.
• Court: U.S. District Court — District of Nevada

JESSICA BARRAZA, Petitioner, v. J. GENTRY, et al., Respondents.

2:14-cv-01185-APG-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

August 2, 2017

ORDER

Introduction

This action is a petition for writ of habeas corpus by Jessica Barraza, who was convicted of second degree murder in a Nevada court and is serving a prison sentence on that conviction. The action is before this Court with respect to the merits of the claims remaining in Barraza's habeas petition. The Court will deny the petition.

Background

Barraza was convicted, on November 2, 2007, in Nevada's Eighth Judicial District Court, in Clark County, of second degree murder with use of a deadly weapon. See Judgment of Conviction, Exhibit 1 (ECF No. 11-1). She was sentenced to life in prison with the possibility of parole after 10 years for the murder, and a consecutive term of life in prison with the possibility of parole after 10 years for the use of a deadly weapon. See id.

The Nevada Supreme Court affirmed the judgment of conviction on August 3, 2009. See Order of Affirmance, Exhibit 2 (ECF No. 11-2). The Nevada Supreme Court then denied Barraza's petitions for rehearing and en banc reconsideration. See Petition for Rehearing, Exhibit 95 (ECF No. 34-11); Order Denying Rehearing, Exhibit 96 (ECF No. 34-12); Petition for En Banc Reconsideration, Exhibit 97 (ECF No. 34-13); Order Denying En Banc Reconsideration, Exhibit 100 (ECF No. 34-16). The United States Supreme Court denied Barraza's petition for writ of certiorari. See Notice of Denial of Petition for Writ of Certiorari, Exhibit 103 (ECF No. 35-3).

On August 19, 2010, Barraza filed a post-conviction petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 106 (ECF No. 35-6). Counsel was appointed for Barraza, and, with counsel, Barraza filed a supplemental habeas petition. See Supplemental Post-Conviction Petition for Writ of Habeas Corpus, Exhibit 110 (ECF No. 35-10). The state district court denied the petition in a written order on November 26, 2012. See Findings of Fact, Conclusions of Law and Order, Exhibit 116 (ECF No. 35-16). Barraza appealed, and the Nevada Supreme Court affirmed on March 12, 2014. See Order of Affirmance, Exhibit 127 (ECF No. 36-11).

This Court received Barraza's federal habeas petition, along with three briefs in support of the petition, initiating this action pro se, on July 18, 2014 (ECF Nos. 1, 1-1, 1-2, and 1-3). Barraza's petition asserts the following 13 claims:

1. Barraza's trial counsel was ineffective, in violation of her federal constitutional rights, for failing to object to an improper jury instruction pertaining to the deadly weapon enhancement. See Petition for Writ of Habeas Corpus (ECF No. 1), pp. 3-4; Brief in Support of Writ of Habeas Corpus (ECF No. 1-1), pp. 16-26; Supplemental Brief One in Support of Writ of Habeas Corpus (ECF No. 1-2), pp. 4-9.

2. Barraza's trial counsel was ineffective, in violation of her federal constitutional rights, for failing to object to an improper jury instruction pertaining to involuntary and voluntary manslaughter. See Petition for Writ of Habeas Corpus, pp. 5-6; Brief in Support of Writ of Habeas Corpus, pp. 27-38; Supplemental Brief One in Support of Writ of Habeas Corpus, pp. 9-14; Supplemental Brief Two in Support of Writ of Habeas Corpus (ECF No. 1-2), pp. 25-37.3. Barraza's trial counsel was ineffective, in violation of her federal constitutional rights, for failing to object to an improper jury instruction pertaining to voluntary manslaughter. See Petition for Writ of Habeas Corpus, pp. 7-8; Brief in Support of Writ of Habeas Corpus, pp. 39-45; Supplemental Brief One in Support of Writ of Habeas Corpus, pp. 14-18.

4. Barraza's trial counsel was ineffective, in violation of her federal constitutional rights, for failing to object to improper witness testimony. See Petition for Writ of Habeas Corpus, pp. 9-10; Brief in Support of Writ of Habeas Corpus, pp. 45-53; Supplemental Brief One in Support of Writ of Habeas Corpus, pp. 18-20.

5. The state district court violated Barraza's federal constitutional rights by denying her an evidentiary hearing on her post-conviction petition for writ of habeas corpus. See Petition for Writ of Habeas Corpus, pp. 11-12; Brief in Support of Writ of Habeas Corpus, pp. 54-58; Supplemental Brief One in Support of Writ of Habeas Corpus, pp. 20-21.

6. The state district court violated Barraza's federal constitutional rights by finding that claims made in her post-conviction petition for writ of habeas corpus were barred by the law of the case doctrine. See Petition for Writ of Habeas Corpus, pp. 13-14; Brief in Support of Writ of Habeas Corpus, pp. 58-64; Supplemental Brief One in Support of Writ of Habeas Corpus, pp. 22-23.

7. Barraza's appellate counsel was ineffective, in violation of her federal constitutional rights, regarding jury instruction 15 and instructions on voluntary manslaughter. See Petition for Writ of Habeas Corpus, pp. 15-16; Brief in Support of Writ of Habeas Corpus, pp. 64-65.

8. Barraza's federal constitutional rights were violated because "[t]he State commented on Barraza's decision not to testify while addressing an evidentiary objection to testimony presented by defense counsel." See Petition for Writ of Habeas Corpus, pp. 17-18; Supplemental Brief Two in Support of Writ of Habeas Corpus, pp. 10-12.

9. Barraza's federal constitutional rights were violated because the trial court "permitted the State to ask questions concerning uncharged misconduct allegedly committed by Barraza without establishing the admissibility of such evidence at a Petrocelli Hearing, and no cautionary instruction was given." See Petition for Writ of Habeas Corpus, pp. 19-20; Supplemental Brief Two in Support of Writ of Habeas Corpus, pp. 12-15.

10. Barraza's federal constitutional rights were violated because "[t]he State presented victim impact evidence during the guilt phase of the trial for the purposes of invoking sympathy and emotional responses from jurors." See Petition for Writ of Habeas Corpus, pp. 21-22; Supplemental Brief Two in Support of Writ of Habeas Corpus, pp. 15-17.11. Barraza's federal constitutional rights were violated because a detective "gave extensive testimony concerning his beliefs as to Barraza's truthfulness, mental state and other factual matters that should have been properly left to the jury for its determination." See Petition for Writ of Habeas Corpus, pp. 23-24; Supplemental Brief Two in Support of Writ of Habeas Corpus, pp. 17-20.

12. Barraza's federal constitutional rights were violated because evidence was admitted at trial concerning statements made by an individual in response to questions asked by a police officer, though the individual was not subject to confrontation or cross-examination. See Petition for Writ of Habeas Corpus, pp. 25-26; Supplemental Brief Two in Support of Writ of Habeas Corpus, pp. 20-25.

13. Barraza's federal constitutional rights were violated because she was not sentenced under the amended version of NRS 193.165. See Petition for Writ of Habeas Corpus, pp. 27-28; Supplemental Brief Two in Support of Writ of Habeas Corpus, pp. 43-49.

On December 1, 2015, respondents filed a motion to dismiss (ECF No. 4), arguing that Barraza had not complied with Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts, and that her petition was vague. The Court denied that motion, and directed respondents to further respond to Barraza's petition. See Order entered June 2, 2015 (ECF No. 9).

On July 14, 2015, respondents filed a second motion to dismiss (ECF No. 10), asserting that various of the claims in Barraza's petition fail to state a claim upon which relief could be granted. On December 11, 2015, the Court granted that motion in part and denied it in part. See Order entered December 11, 2015 (ECF No. 18). The Court dismissed Claims 5, 6 and 9, because they do not state claims upon which relief could be granted in this federal habeas corpus action. See id.

On February 9, 2016, respondents filed an answer, responding to Barraza's remaining claims (ECF No. 19).

Barraza then filed a motion for appointment of counsel, which was denied (ECF Nos. 21, 23), and a "Motion for Transcripts at State Expense," which was granted (ECF Nos. 24, 25). The Court ordered respondents to expand the record. See Order entered April 20, 2016 (ECF No. 25). In accordance with the Court's order, on May 19, 2016, respondents filed several volumes of exhibits, representing the state-court record (ECF Nos. 26-32, 34-36).

Also on May 19, 2016, counsel -- apparently retained by Barraza -- appeared for Barraza. See Notice of Appearance of Counsel (ECF No. 33).

On September 23, 2016, Barraza filed a reply to respondents' answer (ECF No. 39).

On June 19, 2017, the Court ordered the respondents to further expand the record, by filing as an exhibit a copy of the video recording of Barraza's statement to the police, which was admitted into evidence at her trial as State's Exhibit 32. See Order entered June 19, 2017 (ECF No. 40); see also Transcript of Trial, August 22, 2007, Exhibit 71, pp. 115-16 (ECF No. 30-1, pp. 116-17). Respondents complied with that order on July 10, 2017, by filing a copy of the video recording of Barraza's statement to the police. See Notice of Manual Filing (ECF No. 41).

Discussion

Standard of Review

28 U.S.C. § 2254(d) sets forth the standard of review applicable in this case under the Antiterrorism and Effective Death Penalty Act (AEDPA):

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

...