Madrid v. Hutchings

• Decision Date: 06 September 2022
• Docket Number: 2:19-cv-01659-APG-NJK
• Parties: Mariano Madrid, Petitioner v. William Hutchings,[1] et al., Respondents
• Court: U.S. District Court — District of Nevada

Mariano Madrid, Petitioner
v.
William Hutchings,^[1] et al., Respondents

No. 2:19-cv-01659-APG-NJK

United States District Court, D. Nevada

September 6, 2022

ORDER

ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

In March of 2007, a jury convicted petitioner Mariano Madrid of murder with the use of a deadly weapon with the intent to promote, further, or assist a criminal gang, and Madrid was sentenced to 40 years to life. Ex. 32 and ECF No. 27-2 at 2; Ex. 44 and ECF No. 28-7. Madrid has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 9-9-3. I now decide the merits of the remaining grounds in the petition^[2] and Madrid's request for a copy of the docket for this matter (ECF No. 54). For the reasons discussed below, I dismiss with prejudice grounds 1(A)-1(F), 1(G)(d) and (f), 1(H)(d)-(e), and 1(J), deny federal habeas relief for grounds 1(G)(a)-(c) and (e), 1(H)(a)-(c), and 1(I), deny the petition (ECF Nos. 9-9-3), deny a certificate of appealability, and direct the clerk of the court to enter judgment in favor of the

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respondents and against Madrid. As a one-time courtesy to Madrid, I will grant his request for a copy of the docket and direct the clerk of the court to send to him one copy of the docket.

I. Background^[3]

A. The Party and the Shooting

Arlin Delgado and her sisters held a party at their house near East Lake Mead and Boulder Highway in Henderson, Nevada while their parents were away on May 21, 2005. Ex. 25 and ECF No. 25-2 at 3-11. When Delgado realized some of the guests were uninvited and underage drinkers she decided to “kick everybody out.” Id. She later heard gunfire and called 9-1-1; the police arrived in 10 to 15 minutes. Id.

Jesse Lackey testified 30 to 40 people were present when he and his friend, R.M., who was a Surfos gang member, arrived at the party. Id. at 32-33. Lackey and R.M. were in front of the house when J., a DLK gang member, exited the house with 12 to 13 people. Id. Lackey said R.M. and J. had a history of conflict and argued until Madrid (a stranger to Lackey) told them, “This is my neighborhood” and said, “something from Henderson.” Id. at 34. Lackey said someone punched R.M. in the face, a fight broke out, shots were fired, and he ran away. Id. at 34-35. Lackey said R.M. ran alongside him and said, “I'm hit. They hit me,” but did not identify the shooter. Id. at 35, 39. Lackey said he saw Madrid “right next to the cars . . . shooting” at Lackey and R.M. while holding a gun in what he believed was Madrid's right hand. Id. Lackey said police interviewed him, but he did not identify the shooter because he thought they would release him if he had nothing to do with it. Id. at 35-36, 41. Lackey and S.D. (another friend

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who attended the party) went to Mexicali the next day after they learned R.M. died. Id. at 37, 41- 42. Lackey described the shooter to a girl who identified the shooter as Madrid. Id. Nine days after the shooting, police showed Lackey a photographic lineup array and he identified Madrid as the shooter. Id. at 36-37, 41. At trial, Lackey testified he did not see R.M. with a knife or see Madrid get stabbed. Id. at 40.

S.D. testified he attended the party and was a friend of R.M. Ex. 24 and ECF No. 25-1 at 28-30. He said he saw R.M. and J. argue and heard Madrid (a stranger to him) say, “‘This is Henderson' or something like that, ‘Los Hermanos'” and make a hand gesture. Id. at 31-32, 38. He said one of Madrid's friends punched R.M., and everyone started fist-fighting. Id. S.D. said “three guys had [R.M.]” on the driver's side of a car, but S.D. did not see a weapon on R.M. and saw no one with a knife. Id. at 31-32, 39. S.D. said he was fighting two of Madrid's friends, but broke free and went toward R.M., but then saw Madrid, who was five feet away and facing him and R.M., shoot “twice in the air” while stating, “Henderson, Los Hermanos.” Id. at 32-33, 40. S.D. said he saw R.M. get shot in the throat and chest and heard R.M. say, “Sergio shot me. Take me to the hospital.” Id. S.D. hid at a church and left for Mexicali with Lackey the next day for a preplanned trip, where he stayed for three months. Id. at 34, 41. Upon S.D.'s return to Henderson, he was told detectives had questions for him. Id. at 35-36. S.D. did not immediately contact police but met them just before trial and identified Madrid as the shooter. Id.

F.S. testified he was a friend of R.M. and attended the party. Ex 25 and ECF No. 25-2 at 12, 17. He said he heard Madrid (a stranger to him) tell R.M. and J. “they were not gonna fight” because “this was his neighborhood” and he was from “this one gang, LH” and “nothing was gonna happen.” Id. at 13, 16-17, 23. F.S. said someone hit R.M. and then he saw Madrid running to a green or gray car, open the door, move the seat, pull out a shiny chrome gun with

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his right hand, heard him say “Now what, now what,” and then saw him shoot at F.S. and R.M. Id. at 13-14, 18-23. F.S. said R.M. grabbed the back of his neck and they ran from Madrid to opposite side of the street. Id. at 14-15, 17. F.S. knew R.M. to carry a butterfly knife but did not see it and did not see R.M. stab anyone. Id. at 15, 21. F.S. hid at a nearby church with S.D. where they discussed the incident. Id. at 22. F.S. subsequently called “many people,” “to know who was the shooting guy” and was told the shooter was a rapper named “Nano.” Id. at 20, 22. F.S. said he investigated “who it was” and obtained a copy of Nano's rap compact disc (CD). Id. F.S. identified Madrid as the shooter based on a photographic array. Id. at 15-16, 20, 22.

Ignacio Cervantes was the fourth friend of R.M. to testify that he attended the party, and said he heard Madrid say, “something about Henderson side” and “then LH, LAH, something like that.” Id. at 23-25, 30-31. Cervantes said R.M. was hit, a fight broke out, he heard “[s]omething about ‘[h]e's packing,'” and saw Madrid in the middle of the street shooting a gun held in his right hand. Id. at 25-26, 30-31. Cervantes said after the shooting started, he saw R.M. pull out a knife, however, he did not see R.M. approach or stab Madrid and did not see Madrid get stabbed. Id. Cervantes said he and R.M. ran in the same direction, and although he heard R.M. say, “I'm shot. Take me to the hospital,” R.M. did not identify his shooter. Id. at 26- 27, 31. Cervantes said he initially told police he did not see the shooter because he was afraid of Madrid and Madrid's friends; but 10 days later, he identified Madrid as the shooter in a photographic lineup array. Id. at 27-29.

Clark County forensic pathologist Larry Simms testified that Gary Telgenhoff performed the autopsy on R.M., and according to Telgenhoff's report, R.M. died of multiple gunshot wounds. Ex. 29 and ECF No. 26-2 at 45-48, 55. One bullet entered R.M.'s left thigh and exited

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the back of that thigh; another entered his left back and exited the left side of his neck; and a third grazed the back of R.M.'s right calf. Id. at 48-49.

B. The Stabbing

Ernest Duron testified he attended the party and was a long-time friend of Madrid. Ex. 29 and ECF No. 26-2 at 112-16, 120. He said he heard someone say, “he's packing,” saw Madrid run, and then “boom,” “a Mexican kid with a black hat” wearing a black jersey, pushed Madrid against his car and stabbed Madrid in the ribs. Id. at 121-25. Duron said he tried to run to Madrid, heard “bangs,” and crouched down. Id. at 125, 129, 131-32. He said he heard shots coming from behind “when” Madrid was stabbed and as he ran toward Madrid. Id. at 129-32. He said he got scared and entered a friend's vehicle and left the scene. Id. at 125. He denied seeing Madrid with a firearm or shoot anyone. Id.

D.F., also a friend of Madrid, testified he was walking to his car, heard gunfire, and then ran to his car, but did not see the shooter. Ex. 24 and ECF No. 25-1 at 42-44, 46-48. He later saw Madrid's White Cavalier vehicle swerving with the lights off. Id. When D.F. telephoned Madrid, Madrid said he was stabbed, so D.F. drove Madrid's car, which had “blood all over it,” to the hospital. Id. at 45. Madrid never told D.F. that he shot anyone. Id. at 47. D.F. left Madrid's car down the street from the hospital because he was “scared,” “high” “drunk” and there was blood in the car. Id. at 45, 48. He said he told Duron where he parked it and might have told Madrid's father. Id. D.F. said “[t]here was no gun” in the car and he did not expect one there. Id. at 46-48. He told police he did not see the shooter and testified he did not know the shooter's identity. Id. at 45-47.

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C. Eyewitness Identifications

Henderson Police Department Detective Frank Fuentes testified he saw Madrid's wound to his right forearm on the night of the shooting. Ex. 27 and ECF No. 25-4 at 94-96. Fuentes said witnesses told him that R.M. never identified his attacker. Id. at 102-03. Fuentes said Madrid told him he was stabbed while running away from gunfire, but could not identify the stabber, and only realized he was stabbed when he lost feeling in his arm and saw blood. Id. at 101-02, 104-05. Henderson Police Department Detective Gerald Collins testified Madrid told him he heard gunshots and was stabbed while approaching his vehicle but did not see the shooter. Ex. 26 and ECF No. 25-3 at 22-23, 40. Collins said Madrid told him “he heard the shots first and then he got stabbed as he was moving to his vehicle.” Id. Madrid did not admit to shooting R.M. and told police he did not own a gun and never handled or shot one. Id. at 37, 40.

Detective Collins testified no one identified the shooter on the night of the shooting. Id. at 21, 35. Collins said he later located Lackey (after his return from Mexicali) and Lackey identified Madrid as the shooter in a photographic array. Id. at 34-35. Collins arrested Madrid based on Lackey's identification. Id. at 22. Shortly after Madrid's arrest, F.S. and Cervantes identified...