261379 Lizardi v. Shinn

• Court: District Court, D. Arizona
• Decided: July 15, 2019
• Docket: 4:18-cv-00373
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Victor Lizardi, No. CV-18-00373-TUC-JAS (MSD)

10 Petitioner, REPORT AND RECOMMENDATION 11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 This matter is on referral to the Court pursuant to Rules 72.1 and 72.2 of the Local 16 Rules of Civil Procedure. Pending before the Court is Petitioner Victor Lizardi’s pro se 17 Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, which is now fully briefed. 18 (Docs. 1, 14, 17.) For the following reasons, the Court recommends that the petition be 19 denied. 20 I. Background 21 On September 13, 2012, Petitioner was indicted for first-degree murder and armed 22 robbery. (Doc. 14-1 at 3.)1 Trial commenced on April 16, 2013. (See id. at 5.) The State 23 presented evidence that, on the night of August 16, 2011, Petitioner was a passenger in a 24 vehicle being driven by Cecilia Moran when he noticed a parked car owned by the victim, 25 Javier Pareida. (Doc. 14-2 at 38–41.) As Petitioner was determining whether there was 26 anything he could steal from the car, Pareida approached and confronted him. (Id. at 42– 27 43.) Petitioner reentered Moran’s vehicle, and Moran sped off. (Id. at 44.)

28 1 Record citations refer to the page numbers electronically generated by the Court’s filing system, not to the original page numbers in the documents cited. 1 Pareida followed, yelling at Moran to pull over and grabbing his crotch area as if he 2 had a concealed firearm. (Id. at 44–45.) Moran eventually pulled over. (Id. at 47.) Pareida 3 exited his car and “tr[ied] to get all hard with” Petitioner. (Id. at 47–48.) Petitioner exited 4 Moran’s vehicle because he was “not going to let somebody punk him.” (Id. at 48.) At 5 that point, Pareida recognized Moran as someone he had met through a mutual friend, and 6 the two exchanged phone numbers. (Id. at 48–50.) Following the exchange, Pareida 7 retrieved his car keys and dangled them, taunting Petitioner to take them. (Id. at 50.) 8 Petitioner drew his firearm and shot Pareida six times, killing him. (Id. at 13–18, 51–53.) 9 Petitioner drove away in Pareida’s car. (Id. at 56–57.) He and Moran later searched the 10 car, taking money from inside. (Id. at 57.) 11 Petitioner was convicted of armed robbery and first-degree murder (on both 12 premeditation and felony-murder theories). (Doc. 14-3 at 2, 5.) He received sentences of 13 natural life and a concurrent term of imprisonment of 10.5 years. (Id. at 18–19.) Petitioner 14 appealed, arguing that the evidence was insufficient to uphold his convictions and that a 15 criminal restitution order entered at his sentencing hearing should be vacated. (See id. at 16 27.) On July 11, 2014, the Arizona Court of Appeals vacated the restitution order but 17 upheld Petitioner’s convictions. (Id. at 72–76.) Petitioner did not seek review in the 18 Arizona Supreme Court. (Id. at 78.) 19 On July 24, 2014, Petitioner filed a notice of post-conviction relief (“PCR”). (Doc. 20 14-3 at 82–85.) On January 19, 2016, Petitioner filed a PCR petition raising the following 21 claims: 22 1. Was trial counsel ineffective for failing to properly argue the admissibility of 23 evidence about the victim’s prior conduct, and was appellate counsel ineffective 24 for not raising the issue on appeal? 25 2. Was trial counsel ineffective for failing to call David Pesina as a witness? 26 3. Was trial counsel ineffective for advising Petitioner to not testify? 27 4. Was trial counsel ineffective for failing to object during closing argument to the 28 prosecutor’s purportedly incorrect statement regarding the law of self-defense? 1 5. Did the prosecutor engage in misconduct by commenting on Petitioner’s failure 2 to testify? Was trial counsel ineffective for failing to object, and was appellate 3 counsel ineffective for not raising the issue on appeal? 4 6. Was it error to not instruct the jury regarding the rules of defense of property? 5 Was trial counsel ineffective for not requesting such an instruction, and was 6 appellate counsel ineffective for not raising the issue on appeal? 7 (Id. at 87–104.) 8 On May 10, 2016, the PCR court summarily dismissed the fourth and fifth claims 9 as without merit. (Doc. 1-1 at 51–52.) Following an evidentiary hearing on the remaining 10 claims, the PCR court issued a written ruling denying the PCR petition in its entirety. (Doc. 11 14-4 at 59–62.) Petitioner sought review of all his claims in the Arizona Court of Appeals. 12 (Id. at 64–83.) On January 25, 2017, the Arizona Court of Appeals denied Petitioner’s 13 claims on the merits, finding that counsel was not deficient. (Id. at 85–91.) The Arizona 14 Supreme Court denied review on August 2, 2017. (Id. at 93.) 15 Petitioner filed the instant petition on August 1, 2018, presenting the same claims 16 and arguments raised in the PCR petition. (Doc. 1 at 26–30.) Respondents answered, 17 arguing that because the Arizona Court of Appeals’ decision is both legally and factually 18 correct, Petitioner cannot satisfy 28 U.S.C. § 2254(d). (Doc. 14 at 16–23.) 19 II. Standard of Review 20 A. Antiterrorism and Effective Death Penalty Act of 1996 21 Because Petitioner filed his federal habeas petition after April 24, 1996, the petition 22 is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 23 See Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). 24 Under AEDPA, the Court may not grant relief on any claim decided on the merits 25 in state court unless the decision “was contrary to, or involved an unreasonable application 26 of, clearly established Federal law, as determined by the Supreme Court of the United 27 States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the 28 facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). A 1 decision is contrary to clearly established federal law if it applies a rule that contradicts the 2 law as set forth in Supreme Court cases, or if it reaches a result different from a Supreme 3 Court case that is materially indistinguishable on the facts. Tamplin v. Muniz, 894 F.3d 4 1076, 1082 (9th Cir. 2018) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A 5 decision unreasonably applies clearly established federal law if it “identifies the correct 6 governing legal principle from the Supreme Court’s decisions but unreasonably applies 7 that principle to the facts of the prisoner’s case.” Id. at 1083 (quoting Mann v. Ryan, 828 8 F.3d 1143, 1151 (9th Cir. 2016) (en banc)). A decision is based on an unreasonable 9 determination of fact if “an appellate panel, applying the normal standards of appellate 10 review, could not reasonably conclude that the finding is supported by the record.” Id. 11 (quoting Murray, 745 F.3d at 999). 12 In determining whether the strictures of § 2254(d) have been satisfied, federal courts 13 look to the last reasoned state-court decision. Martinez v. Cate, 903 F.3d 982, 991 (9th 14 Cir. 2018). Here, that is the Arizona Court of Appeals’ memorandum decision denying 15 PCR relief. 16 B. Ineffective Assistance of Counsel 17 Petitioner’s claims of ineffective assistance of counsel are governed by the standard 18 set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner 19 asserting a claim of ineffective assistance of counsel must show both deficient performance 20 and prejudice. Id. at 687. To establish deficient performance, the petitioner “must show 21 that counsel’s representation fell below an objective standard of reasonableness.” Id. at 22 688. In considering whether counsel was deficient, federal courts “must indulge a strong 23 presumption that counsel’s conduct falls within the wide range of reasonable professional 24 assistance[.]” Id. at 689. To establish prejudice, the petitioner “must show that there is a 25 reasonable probability that, but for counsel’s unprofessional errors, the result of the 26 proceeding would have been different. A reasonable probability is a probability sufficient 27 to undermine confidence in the outcome.” Id. at 694. 28 Review of ineffective-assistance claims under § 2254(d) is “doubly deferential” 1 because “Strickland instructs courts to review a defense counsel’s effectiveness with great 2 deference, and AEDPA requires federal courts to defer to the state court’s decision unless 3 its application of Supreme Court precedent was objectively unreasonable.” Cheney v. 4 Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal citations omitted). 5 III. Discussion2 6 Each of Petitioner’s claims will be discussed in turn. It is important to note, 7 however, that Petitioner does not present any meaningful argument that the Arizona Court 8 of Appeals’ decision was objectively unreasonable under 28 U.S.C. § 2254(d). He merely 9 repeats (almost verbatim) the arguments the state court found unpersuasive, without regard 10 to the heightened deference this Court owes to the state court’s decision. For this reason, 11 Petitioner has failed to meet his burden of satisfying § 2254(d). See Cullen v. Pinholster, 12 563 U.S. 170, 181 (2011) (stating that “[t]he petitioner carries the burden of proof” with 13 respect to § 2254(d)). In any event, the record reveals that Petitioner would not have been 14 able to satisfy § 2254(d) had he attempted to do so. 15 A. Claim One 16 Petitioner’s first claim relates to counsel’s unsuccessful attempt to have certain 17 evidence introduced at trial. Itza Rodriguez and Amber Sandoval told counsel that they 18 had an altercation with Pareida immediately before the shooting, and that Pareida was 19 drunk and brandished a firearm in anger. (Doc. 14-1 at 10–13.) Counsel argued that 20 although Petitioner was unaware of the altercation at the time of the shooting, the 21 altercation was nevertheless relevant “to explain [Pareida’s] aggressive frame of mind and 22 the fact that he had a gun.” (Id. at 14.) The trial court ruled that Rodriguez’s and 23 Sandoval’s testimony would be admissible only for whether Pareida was drunk and in 24 possession of a firearm, not for whether Pareida was angry and brandished a firearm. (Id. 25 at 18.) 26 Petitioner asserts that counsel was ineffective for failing to “properly” advocate for 27 admission of the full scope of Rodriguez’s and Sandoval’s testimony. He faults counsel

28 2 Respondents concede that the petition is timely. They do not raise any exhaustion or procedural-default defense. 1 for not arguing that the testimony was admissible character evidence under Rule 404(a) 2 and Rule 405(b) of the Arizona Rules of Evidence. He also faults counsel for not arguing 3 that the testimony was admissible because it would have “buttressed” Moran’s testimony 4 that she believed Pareida had a concealed firearm. 5 The Arizona Court of Appeals rejected both arguments. (Doc. 14-4 at 89.) As to 6 the first argument, the court explained that, “under Arizona law, a defendant raising self- 7 defense ‘may not introduce evidence of specific acts unknown to the defendant at the time 8 of the alleged crime to show that the victim was the initial aggressor.’” (Id. (quoting State 9 v. Fish, 213 P.3d 258, 270 (Ariz. Ct. App. 2009)).) The court rejected Petitioner’s second 10 argument because he cited no authority that evidence is admissible merely because it would 11 bolster other witnesses’ testimony. (Id.) Because Petitioner identified no basis on which 12 to find Rodriguez’s and Sandoval’s testimony admissible, the court concluded that 13 Petitioner’s “claims of ineffective assistance fail.” (Id.) 14 This was not an objectively unreasonable application of Strickland. Petitioner is 15 incorrect that Rodriguez’s and Sandoval’s testimony would be admissible under the cited 16 evidentiary rules, and he offers no legal authority for his second theory of admissibility. 17 See Fish, 213 P.3d at 270. Failing to present arguments that are either contrary to or 18 unsupported by the law does not constitute ineffective assistance of counsel. See Sanders 19 v. Cullen, 873 F.3d 778, 815 (9th Cir. 2017). Thus, the state court could reasonably 20 conclude that counsel was not deficient. 21 B. Claim Two & Claim Three 22 In his second claim, Petitioner asserts that counsel was ineffective for failing to call 23 David Pesina as a witness at trial. Pesina, who was also a passenger in the vehicle being 24 driven by Moran, told investigators that he heard Pareida threaten to “cap” them. (Doc. 25 14-2 at 68; Doc. 14-4 at 27.) Petitioner contends that Pesina’s testimony would have 26 corroborated Moran, who testified that she believed Pareida was armed and threatening. 27 The Arizona Court of Appeals found that the decision to not call Pesina was 28 reasonable trial strategy. (Doc. 14-4 at 89–90.) This was not an objectively unreasonable 1 application of Strickland. Pesina also told investigators that Petitioner killed Pareida for 2 taunting Petitioner. (Id. at 32.) Because such testimony would severely undermine 3 Petitioner’s claim of self-defense, it was reasonable not to call Pesina. See Gulbrandson 4 v. Ryan, 738 F.3d 976, 989 (9th Cir. 2013), as amended (holding that defense counsel could 5 have reasonably decided to exclude witness testimony as harmful). Thus, Petitioner’s 6 second claim should be denied. 7 Petitioner’s third claim was also rejected by the Arizona Court of Appeals as 8 reasonable trial strategy. He asserts that counsel was ineffective for “strongly” advising 9 him not to testify, but he concedes that, had he testified, he would have been subject to 10 cross-examination regarding a prior felony conviction. (See Doc. 1-2 at 49.) Under these 11 circumstances, counsel could have reasonably concluded that Petitioner’s testimony would 12 do more harm than good. See Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (holding 13 that defense counsel reasonably advised defendant not to testify based on defendant’s prior 14 convictions); Medley v. Runnels, 506 F.3d 857, 861 (9th Cir. 2007) (en banc) (same). 15 Because it was not objectively unreasonable for the Arizona Court of Appeals to reach the 16 same conclusion, Petitioner’s third claim should be denied. 17 C. Claim Four & Claim Five 18 Petitioner’s fourth claim pertains to a statement made by the prosecutor during 19 closing argument. On the law of self-defense, the prosecutor told the jury that “you’re 20 justified in using . . . deadly force if deadly force is used against you.” (Doc. 14-2 at 197.) 21 Petitioner asserts that counsel was ineffective for failing to object to the statement; he 22 contends that it led the jury to believe that deadly force may be used only in response to 23 the actual use of deadly force, when in fact deadly force may also be used in response to 24 the threatened use of deadly force. (See id. at 187.) 25 Petitioner’s fifth claim pertains to the following statement made by the prosecutor 26 during rebuttal closing: “And who testified that [Petitioner] thought [Pareida] had a gun? 27 Nobody.” (Doc. 14-2 at 210–11.) Petitioner asserts that counsel was ineffective for failing 28 to object. He says that the statement was an improper comment on his failure to testify 1 because no one else could have known what he was thinking when he started shooting. 2 The Arizona Court of Appeals found that even if the statements were objectionable, 3 “counsel might have foregone objecting to avoid drawing attention to” them. (Doc. 14-4 4 at 90.) This was not an objectively unreasonable application of Strickland. The Strickland 5 analysis begins with the presumption that, “under the circumstances, the challenged action 6 might be considered sound trial strategy.” Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 7 2016) (quoting Carrera v. Ayers, 670 F.3d 938, 943 (9th Cir. 2011)). “Because many 8 lawyers refrain from objecting during opening statement and closing argument, absent 9 egregious misstatements, the failure to object during closing argument and opening 10 statement is within the ‘wide range’ of permissible professional legal conduct.” United 11 States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (quoting Strickland, 466 U.S. at 12 689). 13 The comments are not egregious misstatements. Cf. Zapata v. Vasquez, 788 F.3d 14 1106, 1112–24 (9th Cir. 2015) (finding deficient performance and prejudice where defense 15 counsel failed to object to the “prosecutor’s inflammatory, fabricated, and ethnically 16 charged epithets, delivered in the moments before the jury was sent to deliberate”). The 17 statement regarding self-defense, though an incomplete statement of the law, is not 18 technically incorrect.3 And, although a closer question, the statement regarding what 19 Petitioner was thinking could reasonably be construed as a permissible comment on the 20 lack of evidence supporting Petitioner’s claim that he shot Pareida before Pareida could 21 shoot him. See United States v. Johnson, 767 F.3d 815, 824–25 (9th Cir. 20114) (stating 22 that the prosecutor can permissibly “call attention to the defendant’s failure to present 23 exculpatory evidence more generally” (citation omitted)). In any case, both statements 24 were brief, and neither was egregious. 25 Thus, the state court did not unreasonably apply Strickland in concluding that 26 counsel’s failure to object could have been a reasonable, strategic decision to avoid

27 3 Furthermore, the prosecutor told the jury several times to consult the definition of “self-defense” provided in their instruction packets. (Doc. 14-2 at 197, 199, 28 210.) Petitioner concedes that the self-defense instruction was correct. Thus, even if counsel were deficient in failing to object, there was no prejudice. 1 highlighting the statements. See Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2 2013) (finding counsel was not deficient for failing to object, where the failure was 3 “possibly to avoid highlighting” the objectionable statement). Petitioner’s fourth and fifth 4 claims should therefore be denied. 5 D. Claim Six 6 In his sixth claim, Petitioner argues that counsel was ineffective for failing to request 7 a jury instruction that Pareida was not permitted to use deadly force to prevent the theft of 8 his car. He contends that the instruction was necessary to counter the prosecutor’s 9 suggestion that “there are no legal boundaries as to what a victim of an attempted car theft 10 may do to apprehend the would-be thief.” Counsel admitted at the evidentiary hearing that 11 he never thought to request such an instruction. (Doc. 14-4 at 52.) 12 The Arizona Court of Appeals found that Petitioner failed to show deficient 13 performance or prejudice. (Id. at 91.) As to deficient performance, the court explained 14 that Petitioner had identified no evidence or authority “suggesting the failure to request the 15 instruction fell below prevailing professional norms.” (Id.) As to prejudice, the court 16 explained that Petitioner had not “developed any argument that the jury convicted him 17 because it believed the victim was legally justified in pursuing and confronting him.” (Id.) 18 This was not an objectively unreasonable application of Strickland. Petitioner 19 conceded at the beginning of trial that he shot Pareida. (See Doc. 14-1 at 45, 55–56.) The 20 primary issue was whether he was justified in doing so. (See id. at 55–57.) He agrees that 21 the trial court correctly instructed the jury on self-defense, and it is clear from the record 22 that counsel’s closing argument put the issue of self-defense squarely in front of the jury: But the law in its wisdom says the State has to prove that what 23 [Petitioner] did was not self-defense. It’s in your packet. [Petitioner] doesn’t 24 have to prove that he acted in self-defense. [The State] has to prove that he didn’t act in self-defense. 25 And if you look at all that was going on in this case, if you look at the 26 behavior of [Pareida], which was certainly not reasonable, it was not somebody confronting somebody stealing his car. 27 (Doc. 14-2 at 201.) 28 Under these circumstances, the state court could reasonably conclude that counsel 1 was not deficient in failing to request an instruction on a collateral issue (i.e., what Pareida 2 was entitled to do in response to the attempted theft of his car). See Weighall v. Middle, 3 215 F.3d 1058, 1063 (9th Cir. 2000) (rejecting ineffective-assistance claim based on failure 4 to request specific instruction where combination of correct general instruction and closing 5 argument “put the issue [of self-defense] squarely before the jury”). Consequently, 6 Petitioner’s sixth claim should be denied. 7 E. Other Claims 8 Petitioner asserts that his appellate counsel rendered ineffective assistance on direct 9 appeal by not raising the issues presented in his first, fifth, and sixth claims. Because he 10 has failed to establish that trial counsel was deficient for not raising those issues, however, 11 he cannot establish that appellate counsel was deficient for not raising them. See United 12 States v. Moore, 921 F.2d 207, 210–11 (9th Cir. 1990). 13 Petitioner also asserts that the cumulative effect of counsel’s errors requires the 14 granting of habeas relief. This claim is without merit, however, because he has not shown 15 that counsel committed any prejudicial error. See Sanders, 873 F.3d at 815 (rejecting claim 16 of cumulative error where petitioner failed to show “there were multiple deficiencies in his 17 guilt-phase trial”). 18 Accordingly, 19 IT IS RECOMMENDED that Petitioner Victor Lizardi’s Petition Under 28 U.S.C. 20 § 2254 for a Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice. 21 IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied 22 because Petitioner has not made a substantial showing of the denial of a federal 23 constitutional right, and jurists of reason would not find the Court’s assessment of 24 Petitioner’s constitutional claims “debatable or wrong.” See Slack v. McDaniel, 529 U.S. 25 473, 484 (2000). 26 This recommendation is not an order that is immediately appealable to the Ninth 27 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 28 Rules of Appellate Procedure should not be filed until entry of the District Court’s 1 || judgment. The parties shall have fourteen days from the date of service of a copy of this || recommendation within which to file specific written objections with the District Court. 3|| See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days 4|| within which to file responses to any objections. Filed objections should use the following 5 || case number: No. CV-18-00373-TUC-JAS. 6 Failure to file timely objections to the Magistrate Judge’s Report and || Recommendation may result in the acceptance of the Report and Recommendation by the 8 || District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to the 12}| Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. 13 Dated this 15th day of July, 2019. 14 15 MM pme Oe 16 United Staten Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28

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