Orduna v. Garrett

• Decision Date: 09 February 2023
• Docket Number: 3:20-cv-00641-MMD-CLB
• Parties: ERIC ORDUNA, Petitioner, v. TIM GARRETT, et al., Respondents.
• Court: U.S. District Court — District of Nevada

ERIC ORDUNA, Petitioner,
v.
TIM GARRETT, et al., Respondents.

No. 3:20-cv-00641-MMD-CLB

United States District Court, D. Nevada

February 9, 2023

ORDER

MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

I. SUMMARY

Petitioner Eric Orduna was sentenced in Nevada state court to life with the possibility of parole after 20 years plus a consecutive sentence of 4 to 10 years after pleading guilty to first-degree murder with the use of a deadly weapon. (ECF No. 17-1.) This matter is before this Court for adjudication of the merits of Orduna's counseled first amended petition for writ of habeas corpus under 28 U.S.C. § 2254, which alleges that: (1) his guilty plea was invalid; and (2) his counsel was ineffective in seeking to withdraw his guilty plea. (ECF No. 16 (“Petition”).) For the reasons discussed below, this Court denies the Petition but grants a certificate of appealability for ground 1.

II. BACKGROUND

A. Factual background^[1]

On April 10, 2013, on Sandy Lane in Clark County, Nevada, Abraham Mathew's body was found. (ECF No. 21-3 at 35.) Mathew's hands and ankles were bound with

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handcuffs, he had metal tubing wrapped around his neck, and he was covered by a piece of carpet and a shower curtain. (Id. at 38-40.) An autopsy revealed that Mathew died from blunt force trauma to the head. (Id. at 17, 22-23.)

Mathew's car was found in a parking lot a few months later. (Id. at 42-43.) Following the location of Mathew's car, Amber Montoya called the police with information about the car. (Id. at 47, 95.) During a police interview with Montoya, she explained that around April 8, 2013, Mathew “offer[ed] her $500 and his car for her and some girl named Tamara to have sex with [him].” (Id. at 99.) Later, after Montoya “figure[d] out [Mathew was] not going to give her the car . . . if she ha[d] sex with him,” she went to Orduna for help. (Id. at 99-100.) Orduna tried to force Mathew to sign the car title over to Montoya. (Id. at 108.) Orduna and another individual, Jonathan Reyes, held Mathew against his will and eventually kill him. (Id. at 104-05.) Montoya helped Orduna load Mathew's body into the trunk of a car and dump the body on Sandy Lane. (Id. at 105.) Another witness, Crystal Jaquez, testified that Orduna told her that he killed Mathew. (Id. at 69.) And Montoya told Jaquez that Orduna “turned [her] into a murderer.” (Id. at 72.)

B. Procedural background

Orduna, Reyes, and Montoya were indicted for conspiracy to commit kidnapping, first-degree kidnapping resulting in substantial bodily harm with a deadly weapon, conspiracy to commit robbery, robbery with the use of a deadly weapon, conspiracy to commit murder, and murder with the use of a deadly weapon. (ECF No. 21-4.) The prosecution filed a notice of intent to seek the death penalty against Orduna. (ECF No. 21-13.)

Orduna pleaded not guilty, and a trial was set to start on April 4, 2016. (ECF No. 24-16.) On the morning of trial, before the jury panel was brought into the courtroom, Orduna's counsel indicated that “there had [not] been any offers ever relayed to Mr. Orduna through the pendency of this case.” (Id. at 5.) However, on Friday, three days earlier, “the State agreed to allow Mr. Orduna to plead straight up to [all the charges] and they would take death off the table.” (Id. at 6.) Orduna's counsel explained that the

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defense had previously indicated to the prosecution that Orduna would seriously consider: (1) a plea offer of second-degree murder with a sentence of 10 to 25 years in prison, which is the plea offer that Reyes was offered and accepted; or (2) a plea offer of voluntary manslaughter, which is the plea offer that Montoya was offered and accepted. (Id. at 6-7.) Orduna's counsel countered the Friday plea offer with second-degree murder with a stipulated sentence of 18 years to life. (Id. at 7.) The prosecution denied the counteroffer. (Id.) Orduna's counsel then countered with first-degree murder with the possible sentence of life without the possibility of parole taken off the table. (Id. at 7-8.) The prosecution also rejected that counteroffer. (Id. at 8.)

After the state court went through its preference for objections for cause to the jury panel, the proceedings were paused. (Id. at 9.) Orduna's counsel then informed the state court that a new offer had just been made and asked for “a few minutes in private with Mr. Orduna [to] discuss it.” (Id. at 9-10.) The state court responded, “I don't want you to rush through your discussions, but . . . we were supposed to start at 9:30. Now, we're at almost 11:00; okay? But if we're moving forward and it looks like there's some progress, then please take your time.” (Id. at 11.) The state court took a recess from 10:53 a.m. to 11:06 a.m. (Id.)

Following the recess, the jurors were in the courtroom and voir dire began. (Id.) During a bench conference during voir dire, the prosecution stated that “just so you know, we left the offer open to the end of lunch.” (Id. at 56.) A lunch break was taken at 1:05 p.m. (Id. at 115.) The proceedings resumed at 3:22 p.m. without the prospective jurors. (Id.) Orduna's counsel then indicated that Orduna was going to change his plea: “[h]e will be pleading to one count of guilty to murder with use of a deadly weapon. The State has agreed to retain the right to argue at sentencing, but will not seek the death penalty, nor a sentence of life without the possibility of parole.” (Id.) Orduna's counsel also explained that “Mr. Orduna is maintaining his position that he did not take any object and hit it over Mr. Mathews' head,” but Orduna “understands his liability under the alternative pleadings

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in the Indictment.”^[2] (Id. at 117.) An amended indictment, charging Orduna with first-degree murder with the use of a deadly weapon, and Orduna's guilty plea agreement were filed in open court during the proceedings. (ECF Nos. 24-14, 24-15.)

The state court then canvassed Orduna on his guilty plea. (ECF No. 24-16 at 119.) Under that canvass, Orduna stated that, inter alia, (1) he wished to enter into the negotiations, (2) no one forced him to plead guilty, (3) no one threatened him to plead guilty, (4) he understood the possible sentences,^[3] (5) he understood sentencing was up to the state court, (6) he signed the plea agreement, (7) he read and understood the plea agreement, (8) his counsel answered any questions he had, (9) he was “[v]ery satisfied” by his counsel's services, (10) no other promises had been made to him, and (11) he entered his plea freely and voluntarily. (Id. at 119-125.) Notably, after the state court read the charge and various alternative theories of liability from the amended indictment, it asked “[d]id you do those things,” and Orduna did not say anything. (Id. at 124.) His counsel stated, “[t]hat's what you're admitting to right now” and “[t]hat's just a ‘yes.'” (Id.) Orduna then said, “[y]es.” (Id.) The state court found that Orduna's plea was entered freely and voluntarily. (Id. at 125.)

Four days later, Orduna attempted to file a pro se motion to withdraw his guilty plea. (ECF No. 24-19.) In his motion, Orduna explained that he “only plead guilty in open court because he did not understand exactly what was happening and because the stress and strain of having to make such a quick decision in such a short time caused [him] to

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have a mental breakdown.” (Id. at 4.) Orduna also explained, “after almost three years of waiting for a trial, I completely lost sense of what was happening and can't even remember saying the words because I was in some sort of altered mental state based on the fast moving change of events.” (Id. at 5.) Indeed, it was not until Orduna returned to the jail and “took a look at the Guilty Plea Agreement” that he “slowly began to understand . . . that [he] was the only one [out of his co-defendants] facing life in prison.” (Id.) As such, after being relieved of “the tension and stress and oppression of being in the court room [and] being demanded to enter a plea [or] face the death penalty for something [he] did not do,” Orduna wished to go to trial. (Id.)

Orduna was appointed new counsel (hereinafter “post-plea counsel”) following the filing of his motion. (See ECF No. 24-24.) Orduna's post-plea counsel filed a supplement to Orduna's motion, and the prosecution filed an opposition. (ECF Nos. 24-27, 24-30.) An evidentiary hearing was held on Orduna's motion on March 3, 2017. (ECF No. 24-31.)

One of Orduna's counsel who represented him before and during his change of plea (hereinafter “pre-plea counsel 1”) testified, inter alia, that (1) negotiations by way of passing of notes and whispering were happening contemporaneous with jury selection on April 4, 2016, (2) during the lunch break the new offer taking life without the possibility of parole off the table was discussed with Orduna in a holding cell, (3) he asked the prosecution for more time to consider the offer, but the prosecution refused, making it clear “that this was a now or never situation,” (4) following the lunch break, the prosecution provided the written guilty plea agreement, (5) the state court, via the marshal, was pressuring him for information about negotiations because the jury was waiting outside following their return from the lunch break, (6) Orduna called his office the next day and during an in-person meeting a few days later, Orduna stated “that he didn't understand that he was still exposed to being in prison for life,” (7) before pleading guilty, he “[a]bsolutely” explained to Orduna how he could be liable under a conspiracy or aiding and abetting theory of liability, and (8) he believed Orduna was being truthful when he

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conveyed “that he did not understand what he was doing at th[e] time” of the change of plea. (Id. at 16, 28, 32-34, 36-37, 39-41,73, 76.)

Orduna's other counsel who represented him before and during his change of plea (hereinafter “pre-plea counsel...