Benito-Victoria v. Williams

• Decision Date: 24 June 2020
• Docket Number: Case No.: 2:17-cv-02606-APG-VCF
• Parties: JAVIER BENITO-VICTORIA, Petitioner, v. BRIAN WILLIAMS, SR., et al., Respondents.
• Court: U.S. District Court — District of Nevada

JAVIER BENITO-VICTORIA, Petitioner, v. BRIAN WILLIAMS, SR., et al., Respondents.

Case No.: 2:17-cv-02606-APG-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

June 24, 2020

Order

Javier Benito-Victoria, a Nevada prisoner, filed a counseled petition for writ of habeas corpus under 28 U.S.C. § 2254. I deny Benito-Victoria's habeas petition, deny him a certificate of appealability, and direct the Clerk of the Court to enter judgment accordingly.

I. BACKGROUND

Benito-Victoria's convictions arise from events that occurred in Clark County, Nevada between February 1, 1991 and August 31, 1993. ECF No. 8-1 at 2. Gabriella Benito (hereinafter "Gabriella"), who was 22 years old at the time of Benito-Victoria's trial, testified that Benito-Victoria, her uncle, sexually abused her. ECF No. 8-13 at 39-40, 43-44, 51. Gabriella testified that Benito-Victoria "used to take [her] clothes off and touch [her]" and that these incidents occurred when Gabriella was between three and five years old. Id. at 51-53. Specifically, Benito-Victoria "would take [Gabriella's] pants off and [her] diaper or [her] pull-up" and "would rub [her] body" and "put his hands on [her] vagina" and inside of her vagina. Id. at 53-54. Benito-Victoria also "would rub his hand on [Gabriella's butt] and kind of like squeeze it and put his . . . fingers in there." Id. at 54. Further, Benito-Victoria would "unzip his pants and he would have [Gabriella] put . . . [her] hands on his penis" and "would move [her] hand up and down on it and make [her] hold it." Id. at 56. Benito-Victoria told Gabriella "not to say anything" and would "hit [her] on [her] head" when she would yell and cry. Id. at 55.

Following a jury trial, Benito-Victoria was found guilty of four counts of sexual assault with a minor under the age of 14 and three counts of lewdness with a child under the age of 14. ECF No. 11-2. Benito-Victoria was sentenced to life with parole eligibility after 10 years for each of the sexual assault convictions and 10 years for each of the lewdness convictions. ECF No. 11-12. Benito-Victoria appealed, and the Supreme Court of Nevada affirmed on November 29, 2012. ECF No. 11-15. Remittitur issued on December 24, 2012. ECF No. 11-16.

Benito-Victoria filed a counseled state habeas petition and supplement on November 18, 2013 and March 3, 2014, respectively. ECF Nos. 11-17, 11-18. The state district court denied Benito-Victoria's petition on September 25, 2014. ECF No. 11-20. He appealed, and the Supreme Court of Nevada reversed and remanded on November 24, 2015, concluding that the district court erred by not conducting an evidentiary hearing. ECF No. 11-23. A post-conviction evidentiary hearing was held on June 24, 2016. ECF No. 11-25. The district court again denied Benito-Victoria's petition on September 9, 2016. ECF No. 11-28. He appealed, and the Nevada Court of Appeals affirmed on August 16, 2017. ECF No. 12-3. Remittitur issued on September 12, 2017. ECF No. 12-4.

Benito-Victoria filed his counseled federal habeas petition on October 6, 2017, alleging the following violations of his federal constitutional rights: (1) the state district court abused its discretion when it denied his motion for a new trial, and (2) his trial counsel failed to consult and present testimony or evidence of an expert psychologist. ECF No. 1 at 24, 33. The respondents moved to dismiss Ground 1; I denied the motion. ECF Nos. 7, 15. The petition is now fully briefed. ECF Nos. 22, 23.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (AEDPA) sets forth the standard of review generally applicable in habeas corpus cases:

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). 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." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). 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." Id. at 75 (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 409-10) (internal citation omitted).

"A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the 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)).

III. DISCUSSION

A. Ground 1

In Ground 1, Benito-Victoria alleges that his federal constitutional rights to due process, a fair trial, to present evidence, to a reliable verdict, and to present a complete defense were violated when the state district court abused its discretion by denying his motion for a new trial, thereby preventing him from presenting evidence that Gabriella fabricated her accusations against him.¹ ECF No. 1 at 24, 27. In its order affirming Benito-Victoria's conviction, the Supreme Court of Nevada held:

This Court will not set aside the district court's denial of a motion for a new trial absent an abuse of discretion. See State v. Carroll, 109 Nev. 975, 977, 860 P.2d 179, 180 (1993).

"Evidence qualifies as newly discovered if 'it could not have been discovered and produced for trial even with the exercise of reasonable diligence.'" Servin v. State, 117 Nev. 775, 791, 32 P.3d 1277, 1289 (2001) (quoting Callier v. Warden, 111 Nev. 976, 988, 901 P.2d 619, 626 (1995)). Javier contends that the conversation between S.B. and her sister G.B., the victim, described in S.B.'s affidavit was "not discoverable with reasonable diligence" based on the reasoning in Mortensen v. State, 115 Nev. 273, 288, 986 P.2d 1105, 1115 (1999), and thus S.B.'s affidavit is newly discovered evidence.

The conversation between S.B. and G.B. was never disclosed to the defense or the State, despite their multiple interviews with S.B. prior to the trial and examination of her at trial. Similar to the evidence at issue in Mortensen, this conversation was "not discoverable with reasonable diligence" because both parties made several attempts to obtain this, or similar information, and were unable to do so. Id. at 288, 986 P.2d at 1115. However, our inquiry does not end there.

Javier claims that the evidence produced by S.B. in her letter and affidavit impeaches G.B. and, if presented to a jury, may render a different result on retrial. The district court held that S.B. lacked credibility as a witness; therefore, a different result would not be reached on retrial if her affidavit were presented to a jury.

Because the district court is in a better position to assess the credibility of a material witness, this court has held that "[m]atters of credibility . . . remain . . . within the district court's discretion." Ybarra v. State, 127 Nev. ___, ___, 247 P.3d 269, 276 (2011). Additionally, other jurisdictions have determined that the trial court can assess witness credibility or proffered new evidence when ruling on a motion for anew trial based on newly discovered evidence. See, e.g., Shabazz v. State, 792 A.2d 797, 806 (Conn. 2002); Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998).

Here, the district court found that S.B. lacked credibility. Before and during trial, she and G.B. were excommunicated from their extended paternal family because of the allegations against Javier. Following Javier's conviction, G.B. refused her father's requests for leniency at Javier's sentencing. Then, less than two months after the conviction, S.B. provided an affidavit in which she claimed G.B. fabricated the charges against Javier. Prior to this affidavit, the sisters were close. After the affidavit was received, the sisters barely spoke. At the evidentiary hearing on the motion for a new trial, S.B. testified for the defense, which she had not done during the trial. Additionally, she was speaking and sitting with her extended paternal family during the hearing, demonstrating she had been accepted back into the family. Thus, the district court properly determined that S.B. was not a credible witness and that her affidavit would not render a different result probable on retrial. See Sanborn v. State, 107 Nev. 399, 406, 812 P.2d 1279, 1284-85 (1991) (setting forth standard for

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