Flores v. Gittere
| Docket Number | 2:14-cv-01629-GMN-VCF |
| Decision Date | 30 June 2023 |
| Parties | JESUS I. FLORES, Petitioner, v. W.A. GITTERE,[1]et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This matter is before the Court on the merits of the remaining grounds[2]in Petitioner Jesus I. Flores's petition for writ of habeas corpus brought under 28 U.S.C § 2254 (“Petition” (ECF No. 71)). A Nevada jury convicted Flores of five charges: (1) burglary while in possession of a firearm; (2) robbery with use of a deadly weapon, victim 60 years of age or older; (3) first-degree kidnapping with use of a deadly weapon, victim 60 years of age or older; (4) battery with use of a deadly weapon, victim 60 years of age or older; and (5) conspiracy to commit robbery. Flores was sentenced to an aggregate of 216 months to life imprisonment. (ECF No. 14-8.)
The Petition alleges, among other things, the trial court's denial of a motion for mistrial due to the mid-trial severance of the codefendants violated his rights to due process and a fair trial, and trial counsel provided ineffective assistance by conceding Flores's guilt for conspiracy to commit robbery, robbery, and burglary, the victim enhancements, and facts supporting the remaining charges and weapon enhancements. For the reasons discussed below, the Court will deny the Petition and issue a certificate of appealability for Grounds II(A), II(B), II(C) and II(F).
Greg Bestor testified he was 61 years old and lived with his two dogs in a single-story house in Las Vegas, Nevada, on April 29, 2009. He awoke around 1:00 a.m., to find a stranger, Alaberto Javier Martinez, standing at the foot of his bed. Bestor turned on a lamp and donned his glasses. Martinez, while holding “a gun,” said, “[W]e want $1000” to pay rent. Bestor said Flores and John David Rodriguez, also strangers to Bestor, joined Martinez at the foot of the bed. Bestor said Flores had a knife and also demanded rent money but never pointed a gun or knife at him. Bestor told the men he had $100, and Flores located Bestor's money clip and said, “There's only 60 bucks here.” Bestor told the men he withdrew $100 from an automated teller machine (“ATM”) but spent part of it on dinner with his housepainter. While Martinez pointed the gun at Bestor, Flores told him, “[W]ell this is not enough money,” and demanded Bestor's personal identification numbers (“PIN”) for Bestor's debit cards, which Flores found in Bestor's money clip, and Bestor provided Flores with correct PINS. Flores and Rodriguez left the room while Martinez remained with “the gun pointed” at him. Bestor said Rodriguez remained in the house and later returned to the bedroom with a hammer raised over his head, and told Bestor, “[W]e're serious” and “I can really hurt you.” (ECF Nos. 12-1 at 45-47; 12-2 at 10-11, 25; 113-6 at 44-59.)
Bestor testified Flores returned 30 to 45 minutes later and threw the ATM cards and receipts on Bestor's bed, stating, Bestor said Flores “was able to drain one card and he threw it back on the bed” and then Bestor told Flores, Flores decided to take Bestor to the ATM machine. Before leaving, Bestor saw Martinez give the firearm to Flores and Flores give a knife to Martinez. Bestor did not know what Flores did with the firearm and did not see it after the exchange. Bestor said Flores and Rodriguez were in front of him, and Martinez was right behind him holding the knife with the blade “out,” as the foursome walked out to Bestor's vehicle. Bestor feared for his life, did not want to go, and did not want to give them his money. Bestor admitted his testimony about the exchange of weapons was new and he did not mention it during his 911 call, his interview with detectives, or his preliminary hearing testimony.[4] (ECF Nos. 12-1 at 19, 49-51, 59, 64-75; 12-2 at 2-8, 24-26; 113-6 at 59-61.)
Bestor testified Flores entered the driver's seat of Bestor's car, Rodriguez sat in the front passenger seat, and “they made” Bestor sit in the backseat behind Flores next to Martinez who held the knife. Flores drove them to a drive-through ATM where Bestor entered his ATM card and the correct PIN (the same PIN he earlier gave to Flores); however, the ATM rejected the request. At trial, Bestor identified corresponding bank surveillance video. Bestor told the men he had funds in the account and did not know why it did not work. Martinez told Bestor they were serious and needed money, and then stabbed Bestor with the knife. Bestor saw Rodriguez remove from Bestor's vehicle a tape recorder, roll of quarters, and credit and shopping reward cards wrapped in a rubber band. (ECF Nos. 12-1 at 24-25, 30-32; 113-6 at 60-65.)
Bestor testified they returned to his bedroom where Martinez held the knife while Flores used wires he ripped out of the wall behind Bestor's television to tie Bestor's arms and waist to a chair. Flores placed a bandana from Bestor's closet inside his mouth, told Bestor, “Now you got my DNA,” threaded the bandana through Bestor's mouth, and then tied it at the back of Bestor's head. Flores then tied one of Bestor's neckties around Bestor's eyes. Flores told Bestor to wait for his housepainter to untie him later that morning. Bestor said Flores smiled as he removed Bestor's high-definition television. Holding Bestor's driver's license, Flores said, “[W]e know where you live” and threatened to “get” Bestor if he called police. Bestor waited “five, ten minutes,” after the men left, wiggled out of the ties, cut himself free from the chair, and called 911. Among other things, the men took Bestor's driver's license, computer, jacket, and fake money advertising the El Rancho Hotel. (ECF Nos. 12-1 at 2, 7-11, 16-19, 24-27, 34-37, 54; 113-6 at 65-66.)
Las Vegas Metropolitan Police Department (“Metro”) detective Samuel T. Smith responded to the 911 call. Meanwhile, Metro officer Marcin Zemsta stopped Flores, Martinez, and Rodriguez, for jaywalking. Zemsta found Bestor's driver's license and cards on the ground 6 to 8 feet from the men. Zemsta learned a robbery had just occurred at Bestor's address, and based on the suspects' descriptions, contacted the investigating officers. About 15 to 20 minutes after police responded to Bestor's 911 call, they took Bestor to view Zemsta's suspects, and Bestor identified Flores, Martinez, and Rodriguez as the perpetrators. Bestor identified his jacket, worn by Flores, which contained the fake EL Rancho money, and recognized Flores's tattoos. Among other things, police recovered: (1) Bestor's jacket and the fake El Rancho money from Flores; (2) Bestor's shopping reward cards, wrapped in a rubber band, from Rodriguez; and (3) a “small yellow knife,” with a one-to-two-inch blade, from Martinez. Flores's sweatshirt, worn in video surveillance at the Bank of America ATM, was also impounded. Rodriguez's father gave Bestor's computer to Smith. Bestor told Smith that Martinez had the firearm and knife, but he was unsure whether Martinez “handed the gun off to somebody.” Smith saw no cuts or blood on Bestor's shirt, obtained no search warrants for the residences of Flores, Martinez, or Rodriguez, and recovered no firearm during the investigation. Metro forensic scientist Kristina Paulette found Flores's DNA profile on Bestor's bandana. (ECF Nos. 12-1 at 27-28, 56-62; 12-2 at 27-46; 13-2 at 47-48, 53-54, 58-60; 13-3 at 6, 9; 13-7 at 34-68; 113-8 at 13, 38-40, 44-55.)
Wells Fargo vice president of corporate security Chris Gandy identified activity records, and surveillance videos and photographs, depicting attempts to access Bestor's account on the night of the offenses. Among other attempts, a balance inquiry was made at a Bank of America branch in Las Vegas, Nevada, at 12:47:16 a.m., followed by a withdrawal request for $600. That withdrawal was unauthorized as beyond the $300 limit. A request to withdraw $400 was likewise denied. Attempts to access Bestor's account were made that night at a 7-11 store and a Chevron gas station. Gandy identified bank surveillance video and photographs depicting attempts to access Bestor's account at Wells Fargo ATM locations beginning at 1:02:23 a.m., and later at 2:22:06 a.m. Gandy confirmed the account was frozen after a certain number of attempts, and ultimately, no money was taken from Bestor's Wells Fargo account. (ECF No. 113-8 at 3-37.)
Flores Martinez, and Rodriguez were charged by information with five counts, including enhancements: (1) burglary while in possession of a firearm; (2) robbery with use of a deadly weapon, victim 60 years of age or older; (3) first-degree kidnapping with use of a deadly weapon, victim 60 years of age or older; (4) battery with use of a deadly weapon, victim 60 years of age or older; and (5) conspiracy to commit robbery. The State alleged each codefendant was liable for the four non-conspiracy charges in counts (1) to (4) based on three alternative theories of liability: (1) by directly committing the crime, and/or (2) by aiding or abetting in the commission of the crime, with the intent that the crime be committed, by providing counsel and/or encouragement and by entering into a course of conduct whereby all defendants entered together to commit the crime and all defendants acted as lookouts for each other, and/or (3) pursuant to a conspiracy to commit the crime. The State furthermore alleged each defendant was liable because Martinez possessed the firearm during the burglary, Martinez used the firearm and/or the knife to rob and kidnap Bestor, and Martinez stabbed Bestor. For Flores, the...
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