Hays v. Farwell

Citation482 F.Supp.2d 1180
Decision Date22 March 2007
Docket NumberNo. 3:04-cv-0011-RLH-VPC.,3:04-cv-0011-RLH-VPC.
PartiesRobert HAYS, Petitioner, v. Craig FARWELL, et al., Respondents.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

Lori C. Teicher, Federal Public Defender, Las Vegas, NV, for Petitioner.

Brandee M. Mooneyhan, Nevada Attorney General's Office, Carson City, NV, for David K. Neidert, Nevada Attorney General's Office, Reno, NV, for Respondents.


HUNT, Chief Judge.

This is an action on a petition for writ of habeas corpus brought by Robert A. Hays, a Nevada prisoner. The matter is before the court on respondents' Answer (docket # 48) and Hays's Reply (docket # 56). In addition, the court conducted an evidentiary hearing commencing on October 19, 2006, and concluding on March 6, 2007. Having considered the arguments and evidence presented and in full consideration of the applicable law, the court finds in favor of the Hays and orders him immediate released from custody.

I. Background

The procedural history was set out in detail in this court's order addressing respondents' most recent motion to dismiss. It will not be repeated here. However, relevant to the discussion and decision set out below is some factual background. The factual background is derived from the records of the state court proceedings, from testimony offered at the evidentiary hearing conducted by this court, and from other documents contained in the expanded record, including police reports, juvenile court proceeding transcripts, affidavits of interested parties, and reports by social workers and other state agents.

Hays was convicted following a jury trial on four counts of Sexual Assault of a Minor Under the Age of Fourteen Years and four counts of Lewdness with a Minor on charges that he sexually abused his then eight-year old daughter, Jennifer.

Hays moved to Las Vegas, Nevada from Brooklyn New York in August of 1991 with his wife, Karen, and five young children. Jennifer is the oldest of those children. Hays worked the graveyard shift as a security guard at a casino in a nearby community. After some time, Karen obtained employment at another casino in the same community. She worked the afternoon shift.

Karen became pregnant with Jennifer when she was 18 years old and she and Robert had three children before they married. Robert and Karen Hays did not have a happy marriage. In fact, at the time of Hays' criminal trial, Karen was involved with another man and was pregnant with his child.1 Since the time that the Hays children were removed from their home and placed in the custody of child protective services, in 1992, Karen has seen them fewer than three times. She visited them only once while they were at Child Haven, testifying that it was simply too much trouble to visit the children under the conditions set by Social Services. She saw Jennifer once outside the courthouse during Hays's trial. According to her own testimony, Karen never sent birthday or holiday gifts or cards and was unaware of their accomplishments or present life status.

The evidence before this court strongly suggests that Karen was an abusive and neglectful mother, who slept late in the mornings and expected Jennifer to fill the role of care-giver and homemaker for the younger children. Karen was verbally and physically abusive to Jennifer and, to a lesser extent, to the younger children. She told Jennifer on more than one occasion that she wished Jennifer had never been born. She frequently shouted at the children and threw objects at them when she was angered. She also struck or spanked them frequently.

Hays's parents, Virginia and Anthony Russo lived in the Las Vegas area and frequently took care of the children. Mrs. Russo would often go to the Hays home to help Jennifer clean it. Hays, himself was apparently not physically or verbally abusive to the children, but he was unable, or unwilling to stop his wife's actions. Jennifer testified that Hays was rarely around when the abuse occurred.

The evidence presented in these proceedings also strongly indicates that Karen Hays wanted desperately to be released from the responsibility for her five young children and from her marriage. In order to be free of them all, Karen set in motion a most insidious plan to break the bonds that held her. Karen schooled and coached eight-year old Jennifer about adult sexual behavior and then threatened and coerced her into making accusations of sexual abuse against her father.

II. Legal Standard

In most circumstances, 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this Court's consideration of a petition for writ of habeas corpus by a prisoner is state custody. That standard is as follows:

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). These standards of review "reflect the ... general requirement that federal courts not disturb state court determinations unless the state court has failed to follow the law as explicated by the Supreme Court." Davis v. Kramer, 167 F.3d 494, 500 (9th Cir.1999).

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] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (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." Andrade, 538 U.S. at 74, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). 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, 120 S.Ct.1495).

In determining whether a state court decision is contrary to federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000), cert. denied, 534 U.S. 944, 122 S.Ct. 324, 151 L.Ed.2d 242 (2001). Furthermore, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Certain additional legal considerations may come into play in establishing a petitioner's entitlement to habeas corpus relief. Where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default. Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). If a petitioner presents reliable evidence that he is actually innocent — something beyond what he showed to the jury that convicted him, a federal court may excuse a procedural default. See, Schlup v. Delo, 513 U.S. 298, 299, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir.1993).

In opposing the state's motion to dismiss, the petitioner presented a number of affidavits and other documents which supported his claim that the then eight-year old victim of his alleged crimes has recanted her trial testimony. The evidence also demonstrates that Jennifer had good reason to later stick to her story of abuse, because she was afraid of her mother and of the possibility that Karen would come back to take her from her grandparents. Hays provided evidence that his former wife, Karen, admitted to police and under oath that she had coached Jennifer to bring the charges against her husband in an effort to separate from him and retain custody of the children.2

Thus, although certain of his claims were procedurally defaulted in state court and Hays was unable to demonstrate cause for his failure to meet the procedural requirements of the state courts, the default was forgiven based on his preliminary evidence demonstrating to this court that he is actually innocent of the charges against him.

At the evidentiary hearing granted to develop the facts to support his underlying constitutional claims, Hays most thoroughly demonstrated his actual, factual innocence. Were this contention of actual innocence the only claim made and supported by Hays, he would be ineligible for relief from this court. See Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). However, the state courts' handling of his claims, together with the evidence brought forth at the evidentiary hearing clearly and...

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