Echavarria v. Baker

JOSE L. ECHAVARRIA, Petitioner, v. RENEE BAKER, et al., Respondents.

Case No. 3:98-cv-00202-MMD-VPC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

January 16, 2016

ORDER

I. INTRODUCTION

This action is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Jose L. Echavarria, a Nevada prisoner convicted of first degree murder and other crimes, and sentenced to death for the murder conviction and to prison sentences for the other felony convictions. The case is before the Court for resolution of the merits of the claims remaining in Echavarria's second amended petition for writ of habeas corpus, and with respect to a motion made by Echavarria requesting an evidentiary hearing. The Court finds that an evidentiary hearing is not warranted, and denies Echavarria's motion for an evidentiary hearing. The Court grants Echavarria habeas corpus relief with respect to one of his claims (Claim 4), and orders the State to retry Echavarria within a specified time or release him from custody. The Court directs the Clerk of the Court to enter judgment accordingly, but orders the judgment stayed pending appellate and certiorari review. The Court denies Echavarria a certificate of appealability regarding his claims on which relief is denied.

II. BACKGROUND FACTS AND PROCEDURAL HISTORY

The following is the statement of facts and procedural history set forth by the Nevada Supreme Court in its 1992 opinion on the direct appeal of Echavarria and his co-defendant, Carlos Alfredo Gurry:

On the morning of June 25, 1990, Jose Lorrente Echavarria, disguised as a woman and wearing a gauze pad on his cheek and a cast or sling on his arm, entered a Las Vegas branch of the Security Pacific Bank with the intention of robbing it. Echavarria previously had surveyed the bank and determined that no security guards were employed there. When Echavarria approached a bank teller and eventually pointed a gun at her, the teller screamed and jumped back from the counter, causing Echavarria to abandon his holdup attempt and start walking towards the exit door of the bank.

FBI Special Agent John Bailey, who happened to be at the bank on Bureau business at the time of the incident, inquired about the commotion. Upon learning that Echavarria had pulled a gun on a bank teller, Bailey turned to follow Echavarria, pulled out his gun, and yelled something akin to "halt, this is the FBI." Echavarria turned, glanced at Bailey, and continued to walk towards the exit. Bailey then fired a shot that shattered the bank's glass front door. Echavarria stopped. Bailey grabbed the gunman, held him against the wall, and ordered him to drop his gun, which Echavarria eventually did.

Acting swiftly, Agent Bailey frisked Echavarria, requested that someone call the FBI office, and asked a bank employee to retrieve his handcuffs from his car. Bailey seated Echavarria in a chair while he waited for the handcuffs. The bank employee returned with the cuffs, but before Bailey could shackle Echavarria, he jumped out of the chair and collided with Bailey. During the ensuing scuffle, Bailey fell to the ground and Echavarria, retrieving his own gun, fired several shots at the downed agent. Echavarria then ran from the bank. Bailey was transported to a hospital, where he succumbed to three gunshot wounds.

The trial evidence supported the State's theory that after exiting the bank, Echavarria ran to his blue Firebird where the getaway driver, Carlos Alfredo Gurry, was waiting and the two sped away. A police officer who arrived at the crime scene shortly after Echavarria had fled discovered a motorcycle in the handicap parking space outside the bank. An investigation of the vehicle identification number on the motorcycle revealed Echavarria as the owner. A DMV check disclosed that the license plate attached to the motorcycle belonged to another vehicle. The rightful owner of the license plate identified Gurry as the person he had seen lurking around his motorcycle on two mornings shortly before the bank incident. Testing revealed Gurry's fingerprints on the stolen plate.

Information from a wallet which Bailey had removed from Echavarria during the frisk quickly led investigators to the apartment shared by Echavarria and Gurry. The license plate belonging to Echavarria's motorcycle and a screwdriver were found on the walkway infront of the apartment. Inside the apartment, clothes were strewn about the living room floor. In a dumpster outside the apartment police found a Security Pacific Bank Visa credit card application with both Echavarria's and Gurry's fingerprints on it, and a business card with C. Williams Costume Shop written on the back. When questioned, clerks at the costume shop remembered two Hispanic men who came into the store a few days before the attempted robbery and looked at afro wigs and arm casts, although they could not remember if the men purchased anything.

Gurry was arrested when he returned to his apartment the afternoon of the incident. Initially, Gurry stated that he had been at a friend's house working on a car since 9:00 a.m. Later, Gurry told the FBI that he was scared and had lied about his first story. Gurry stated that he had actually borrowed Echavarria's car on the morning of June 25, 1990, to take care of an immigration problem and some errands, and that he thereafter spent the remainder of the morning at the apartment. Gurry reported that Echavarria, looking desperate, came into the apartment about noon, changed clothes and left in a hurry. Gurry said that Echavarria's behavior frightened him, so he called a friend to pick him up. Gurry allegedly stayed about half an hour at the friend's house, then returned home.

Meanwhile, Echavarria headed south in his blue Firebird, arriving at the home of a former girlfriend in Juarez, Mexico, in the early morning of June 26, 1990. Echavarria convinced the former girlfriend, Maria Garcia, to give him six hundred dollars before leaving. Echavarria next contacted Maria's brother, Jorge Garcia, for help. Jorge bought an airline ticket for Echavarria and took him to the airport. At Echavarria's request, Jorge also buried two guns and abandoned the blue Firebird along the highway. [Footnote: The guns were later recovered by the Mexican authorities and turned over to the FBI. One of the guns fired the bullets which killed Agent Bailey. The other had been purchased by Gurry from a co-worker in late May, 1990. The Firebird was also recovered and searched, revealing the fingerprints of Echavarria and Gurry, and fragments of glass consistent with the glass in the bank door.]

The Juarez police arrested Echavarria at the airport at about 8:30 p.m. on June 26, 1990. The next morning, Echavarria signed a written statement confessing to the murder of Agent Bailey. Echavarria was turned over to the FBI after his confession, and subsequently returned to the United States.

Echavarria and Gurry were each indicted on five counts: first-degree murder with the use of a deadly weapon, burglary, attempted robbery, escape and conspiracy. The State had to conduct a second grand jury to indict Gurry because the district court found that the evidence against Gurry in the first grand jury was insufficient and the prosecutor had misled the grand jury and failed to present exculpatory evidence.

Before trial, Echavarria moved to suppress his Juarez confession on the grounds that he had confessed after being subjected to physical torture and abuse while in the custody of the Mexican authorities. After a two-day evidentiary hearing, the motion was denied.

Trial commenced on March 15, 1991, and the guilt phase concluded with jury verdicts of guilty on all counts against Echavarria. Gurry was found guilty of all counts except the escape charge, which the district court had dismissed for lack of evidence.

After the penalty phase of the trial, the jury found three aggravating circumstances relating to the murder committed by Echavarria and sentenced him to death. The jury found four mitigating circumstances in favor of Gurry and sentenced him to life in prison with the possibility of parole. [Footnote: Gurry received a second life term as a deadly weapon enhancement.] The district court also sentenced each appellant to additional prison time for the other felonies. Appellants' motion for a new trial was denied.

Echavarria v. State, 108 Nev. 734, 737-39, 839 P.2d 589, 591-93 (1992) (copy in record at Exh. 112).¹

The Nevada Supreme Court affirmed Echavarria's conviction and sentence. Id. The United States Supreme Court denied certiorari on May 17, 1993. Echavarria v. Nevada, 508 U.S. 914 (1993). The Nevada Supreme Court ordered its remittitur issued on January 25, 1994. Exh. 116.

Echavarria filed his first state-court habeas corpus petition on July 28, 1995. Exh. 119. That petition was denied by the state district court on November 7, 1995. Exh. 122. Echavarria appealed. See Exhs. 127, 129. The appeal was dismissed on December 20, 1996. Exh. 130. Rehearing was denied on December 17, 1997. Exhibit 132.

Echavarria initiated this federal habeas corpus action on April 17, 1998, by filing a pro se habeas petition (dkt. no. 1). On May 1, 1998, the Court appointed counsel to represent Echavarria. (Dkt. nos. 3, 8, 9.) Extensive discovery proceedings ensued. (See, e.g., dkt. nos. 17, 47, 49, 68.) On October 16, 2006, Echavarria filed a first amended habeas petition (dkt. nos. 107 and 108).

/// On March 26, 2007, upon an unopposed motion by Echavarria, the Court stayed this case to allow Echavarria to return to state court to exhaust the unexhausted claims in his amended petition. (Dkt. no. 118.) The stay was lifted on July 12, 2011, after Echavarria's further state-court proceedings were completed. (Dkt. no. 133.) On November 18, 2011, Echavarria filed a second amended petition for writ of habeas corpus (dkt. nos. 136 and 139).

During the stay, Echavarria initiated two habeas corpus actions in state court. He initiated one of those — his second state habeas...