Zanini v. Garrett
| Decision Date | 21 February 2023 |
| Docket Number | 3:18-cv-00336-MMD-CSD |
| Parties | FRANK ZANINI, Petitioner, v. TIM GARRETT,[1]et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
Petitioner Frank Zanini filed a second amended petition for writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 36 (“Petition”)). A jury convicted Zanini of three counts of sexual assault of his niece, J.Z.,[2] and he is sentenced to imprisonment for 70 years to life. (ECF Nos 10-3, 10-5.)[3] In the remaining grounds of the Petition, Zanini seeks habeas relief based on claims of evidentiary error, prosecutorial vouching, Brady[4] violations, improper amendment of the information, and ineffective assistance of trial counsel.[5] For the reasons discussed below, the Court will dismiss with prejudice Grounds 8(A), 10(B), 10(C); deny federal habeas relief for Grounds 1, 3-7, 8(B), part of 9, 10(A), and 10(D); deny the Petition (ECF No. 36); and issue a Certificate of Appealability for portions of Ground 9.
J.Z.[7] testified that when she was 5 years old, she told someone that her father had molested her, and he went to prison after pleading guilty. (ECF No. 90-6 at 9.) J.Z. said her parents relinquished parental rights and she and her brother, Ronald “Ronnie” Zanini, were adopted by their paternal grandparents when she was around 6 years old. (Id. at 56, 9, 14.) J.Z. said that during the time she lived with her grandparents, she vacationed, sometimes lived with, and often spent weekends, at the home of her paternal uncle, Zanini, and his wife, Margaret “Margie” Zanini. (Id. at 26-29.)
J.Z. testified that in September of 2007, when she was 14 years old, she told school police that Timothy Duzubiak raped her because she had started bleeding and thought she was pregnant, but after she learned she was not pregnant, she recanted the accusation, saying she and Duzubiak had consensual sex. (Id. at 200-03.) J.Z. testified she also told police her encounter with Duzubiak was her first consensual sexual experience; however, she admitted that was a lie because, at the time she made that statement, she was in a consensual sexual relationship with a 40-year-old man named Byron Peery.[8] (Id. at 204.) J.Z. testified that her grandmother called police about the relationship with Peery, and J.Z. said she initially lied to police, telling them she did not have a sexual relationship with him. (Id. at 189-91.)
J.Z. testified she ran away from her grandparents' house in November of 2007 because she “kept getting grounded” and “did not want to be grounded,” and that police located her at Peery's house. (Id. at 26, 30-33, 192-93, 200.) She said that this time, she told police she had a sexual relationship with Peery, and thereafter, without her having to testify, Peery went to jail after pleading guilty to sexual seduction. (Id.)
J.Z. testified that, after her removal from Peery's house, she did not want to return to her grandparents' home because she knew she would get in trouble; so, when police told her they needed a reason not to return her to her grandparents' home, she told them her paternal grandfather had molested her when she was 6 years old. (Id. at 21, 26, 3334, 194-96.) J.Z. admitted that she did not at that time tell police about any sexual abuse by Zanini, although she did tell them her father and grandfather had molested her, Duzubiak raped her, and she had a sexual relationship with Peery and another unnamed individual. (Id.) J.Z. claimed she had previously disclosed her grandfather's abuse to her friend, T.A., and told T.A. not to tell anyone about it. (Id. at 34-35.)
J.Z. said her allegations against her grandfather prompted the removal of two foster babies from her grandparents' home, and that she recanted the allegations so the foster babies would be returned to them. (Id. at 19-21, 35-39.) At Zanini's trial, however, J.Z. recanted that recantation by asserting her grandfather had molested her. (Id. at 2325, 34.) She said she asked him to admit it to her grandmother so her grandmother would stop hating her and thinking she lied about it, but her grandfather told her he couldn't tell her grandmother “because they've been in love so long it would kill her.” (Id. at 43.)
J.Z. testified that in January of 2008, when she was 15 years old, she kept “getting in trouble” and “didn't want to stay [at her grandparents' house] anymore.” (Id. at 25-26.) J.Z. testified that, with her consent, and during the time that Zanini was sexually abusing her, she was permitted to move in with Zanini and Margie. (Id. at 1419, 44-46, 182, 197-98.) J.Z. said she was thereafter expelled from two schools. (Id. at 168-69.)
J.Z. testified that in July of 2008, she ran away from Zanini and Margie's house after she and Margie had an argument during which Margie “smack[ed]” J.Z., and Zanini and Margie grounded J.Z. and told her it was her “last chance” with them and mentioned “bootcamp.” (Id. at 46-56, 147-48.) J.Z. said she went to the home of her friend, Jessie, and Jessie's husband, Charles, told them “what happened” “with [her] uncle,” and they took her to Henderson Police the next morning “to turn in [her] uncle” for sexually abusing her because J.Z. said she “didn't want it to happen anymore.” (Id. at 56-60, 148-49, 23132.) J.Z. said she met with Detective Amber Swartwood and honestly relayed to her as much as she could recall about Zanini's sexual abuse. (Id. at 60-62.) She admitted that she asked if she could live with Jessie and Charles. (Id. at 167.)
Henderson Police Detective Amber Swartwood of the Special Victims Unit testified she tape-recorded her interview with 15-year-old J.Z. on July 17, 2008. (ECF No. 90-7 at 184-85, 187-90.) Swartwood said J.Z. told her Zanini sexually assaulted her about once a month while she was between the ages of 8 and 12 years old, and about twice a month when she was between the ages of 12 and 15 years old, with the most recent incident of assault in July of 2008. (Id. at 189-91, 194.) Swartwood said J.Z. told her about 11 specific instances of sexual assault that included acts of cunnilingus, digital penetration, fellatio, and sexual intercourse. (Id. at 199-91, 194-96, 205-09.) Swartwood summarized the 11 incidents, including specific acts of sexual intercourse involving (1) a red plaid dog bed; (2) the living room floor; (3) a car; (4) a recliner in the garage; (5) a green paisley comforter; (6) J.Z.'s Tweety Bird comforter; and (7) a white blanket. (Id.)
Henderson Police Department crime scene analyst Joy Self testified she collected carpet samples to the West of J.Z.'s bed, a “white-ish colored” blanket, and a Tweety Bird comforter from J.Z.'s bedroom in Zanini's home in July of 2008. (Id. at 143-57, 167-68, 175; see also ECF No. 8.) Las Vegas Metropolitan Police Department DNA analyst Jennifer Bas testified the Tweety Bird comforter was negative for blood and semen, but the carpet and white blanket were positive for Zanini's semen and sperm.[9] (Id. at 32, 3650.) Bas agreed it is normal to find a person's DNA on items in their home and it is impossible to determine to a reasonable degree of certainty when or how long DNA was deposited in a particular location. (Id. at 57, 72-73.)
The District Attorney's investigator, Craig Fabert, testified he listened to jail calls between Zanini and family members, and in one of the calls, Zanini said the only way anything is going to work out is if [J.Z.] recants her story, followed by his statement, “[o]therwise, I'll be in jail for the rest of my life for something I didn't do because that little bitch lied so she didn't have to go to boot camp, which she should have know[n] we would have never F'ing done.” (ECF No. 90-9 at 312.)
At trial, J.Z. testified her allegations caused problems in the family and her brother, Ronnie, wanted her to say nothing happened. (ECF No. 90-6 at 64-65.) Ronnie testified that, in his opinion, J.Z. is “not very truthful.” (ECF No. 90-9 at 152.) He said she told him the allegations were true, but also told him they were false. (Id. at 153.) At Zanini's instruction, Ronnie said he told J.Z. to recant her story, but denied telling her to lie or threatening her if she did not recant the allegations. (Id. at 140-42, 154-56.) J.Z.'s grandmother testified she took J.Z. to defense counsel's office, that J.Z. wanted to go, and neither she nor Ronnie forced J.Z. to do so. (Id. at 199.)
J.Z. testified she and her grandmother went unannounced to defense counsel's office on August 28, 2009, and she told defense counsel the abuse never occurred, and she wished to recant her allegations. (ECF No. 90-6 at 65-66, 149-51, 185.) She agreed she told defense counsel (and later Detectives Swartwood and Abernathy) that she did not want Zanini to be in jail for something he did not do and just because she was mad at him. (Id. at 155, 159, 164-66.) She agreed defense counsel and the defense investigator never threatened or pressured her. (Id. at 184.)
On cross-examination, J.Z. testified that, after her recantation to defense counsel, the prosecutor visited her at school. (Id. at 151-52.) She said Detectives Swartwood and Abernathy later visited her at her home, told her the recantation was a lie, and asked her whether anyone in the family, particularly Ronnie or her grandmother, had influenced her to recant the allegations. (Id. 151-57.) J.Z. testified she told the detectives her recantation was the truth, and her initial allegations were a lie. (Id. at 154, 159.) J.Z. said she told the detectives she felt it was wrong for Zanini...
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