Order
This case is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 by Noel Lirio Gonzales. ECF No. 12. This case is before this Court for adjudication of the merits of Gonzales' petition. The Court denies Gonzales' petition, denies him a Certificate of Appealability, and directs the Clerk of Court to enter judgment accordingly.
Gonzales' convictions are the result of events that occurred in Clark County, Nevada on or about November 15, 2012. ECF Nos. 21-4, 25-12, 27-4. In its order affirming Gonzales' convictions, the Nevada Court of Appeals described the crime, as revealed by the evidence at Gonzales' trial, as follows:
Michelle Damaya [sic] was in the garage of her home vacuuming her car while her 22-month-old daughter Abigail napped inside the house. Three people, a woman and two men, entered through the open garage door and accosted Michelle. The shorter of the two men, later identified as Gonzales, was wearing a mask and had the hood of his sweatshirt pulled over his head so that Michelle could not immediately see his face. Gonzales pointed a gun at Michelle and told her, "we want your guns, we want your money." The woman motioned for Michelle to go inside the house, and she complied.
At gunpoint, Michelle led the trio to the master bedroom, where they ransacked the room in search of valuables. The trio asked Michelle where any guns and money were kept, but Michelle answered that she did not know because her husband had recently moved his guns in order to prevent Abigail from accidentally finding them. The woman responded by calling Michelle stupid for not knowing where anything was. Eventually, after searching the entire room, the perpetrators found a safe and forced Michelle to open it. The perpetrators then forced Michelle to hold laundry baskets for them to fill with items from the safe.
Michelle asked if she could go get Abigail, but the perpetrators refused. Following repeated and increasingly insistent requests by Michelle, Gonzales eventually gave permission and Michelle retrieved her daughter. At some point Gonzales and the female perpetrator split up to search other rooms of the house while the taller man stayed in the master bedroom with Michelle and Abigail. The taller man continued searching the master bedroom and eventually discovered a hidden firearm owned by Michelle's husband.
After a few minutes, the woman called Michelle to another room where Michelle watched her go through the drawers of a desk. Michelle asked the taller man why they were there, and he replied that they had been hired to "come get your guns and money." The trio then scattered throughout the house in search of more valuables, leaving Michelle and Abigail alone. Michelle ran to a side door that she had previously left unlocked, but apparently had been locked by the perpetrators during the crime, unlocked it, and fled the house with Abigail to a neighbor's residence where she called 9-1-1. Police officers arrived moments later and quickly located the woman and the taller man who had accompanied Gonzales. They also found a car parked in Michelle's driveway in which documents bearing Gonzales' name were later discovered.
While police officers worked to establish a perimeter around the house, Gonzales voluntarily approached a police detective parked on the street and spontaneously uttered, in English, "I was involved. It was me. I was involved." He was immediately arrested and searched, and property belonging to Michelle and her husband was found on his person. After the search, Gonzales asked, again in English, to be placed into the police car rather than be left standing in the street, and officers complied. Gonzales remained seated in the police car for approximately one hour with one back door open and the air conditioning turned on while the police continued to investigate the scene.
Gonzales was then transported to police headquarters and interrogated by Detective Patrick Flynn. Prior to the interrogation, Detective Flynn administered warnings, in English, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). In English, Gonzales stated that he understood his rights and agreed to be questioned. Flynn repeated the warnings again, in slightly different and less formal language, later during the questioning. Gonzales, whose native language is Tagalog, never requested theassistance of an interpreter, and none was provided. The entire interrogation was conducted in English and tape-recorded. Gonzales subsequently confessed to the offenses in detail in English.
ECF No. 29-9 at 2-5.
On August 15, 2013, following a jury trial, Gonzales was found guilty of conspiracy to commit robbery, burglary while in possession of a deadly weapon, robbery with the use of a deadly weapon, and first-degree kidnapping with the use of a deadly weapon. ECF No. 28-2. Gonzales was sentenced to 24 to 60 months for the conspiracy conviction, 48 to 120 months for the burglary conviction, 60 to 180 months for the robbery conviction plus a consecutive term of 60 to 180 months for the deadly weapon enhancement, and life with parole eligibility after 5 years for the first-degree kidnapping conviction plus a consecutive term of 24 to 120 months for the deadly weapon enhancement. ECF No. 28-7. Gonzales appealed, and the Nevada Court of Appeals affirmed on July 2, 2015. ECF No. 29-9. Remittitur issued on July 27, 2015. ECF No. 29-10.
Gonzales filed his pro se state habeas petition on June 16, 2016. ECF No. 29-12. The state district court denied Gonzales' petition on September 19, 2016. ECF No. 29-16. Gonzales did not appeal.
Gonzales filed his pro se federal habeas petition and his counseled amended petition on September 29, 2017, and July 19, 2018, respectively. ECF Nos. 5, 12. Gonzales' amended petition raises a sole ground for relief: there was insufficient evidence to sustain his dual convictions for robbery and first-degree kidnapping. ECF No. 12 at 6. The Respondents answered Gonzales' amended petition on January 11, 2019. ECF No. 20. Gonzales replied on February 11, 2019. ECF No. 31.
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28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases 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 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.
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." Id. (quoting Williams, 529 U.S. at 410). "The state court's application of clearly established law must be objectively unreasonable." Id. (quoting Williams, 529 U.S. at 409).
The Supreme Court has instructed that "[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)).
In Gonzales' sole ground for relief, he alleges that his federal constitutional rights were violated because there was insufficient evidence to sustain his dual convictions for robbery and first-degree kidnapping because the evidence presented showed the kidnapping was incidental to the robbery. ECF No. 12 at 6-7. The Respondents argue that the movement of the victim from her open, public garage to the private interior of her home created a risk of danger that substantially exceeded that necessary for the crime of robbery, so the robbery and kidnapping were not incidental. ECF No. 20 at 8. In its order affirming Gonzales' convictions, the Nevada Court of Appeals held:
Gonzales contends the evidence in this case was insufficient to sustain convictions for both first-degree kidnapping with the use of a deadly weapon and robbery with use of a deadly weapon.
The test for sufficiency of the evidence in a criminal case is "'whether,
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