Armando Ortiz v. Attorney General of the State

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2023
• Docket: 21-15496
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARMANDO ANDRES ORTIZ, No. 21-15496

Petitioner-Appellant, D.C. No. 4:17-cv-00623-JGZ

v. MEMORANDUM* ATTORNEY GENERAL OF THE STATE OF ARIZONA; DAVID SHINN, Director,

Respondents-Appellees,

and

CHARLES RYAN,

Respondent.

Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding

Submitted February 14, 2023**

Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.

Arizona state prisoner Armando Andres Ortiz appeals pro se from the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). district court’s judgment denying his habeas petition under 28 U.S.C. § 2254. We

have jurisdiction under 28 U.S.C. § 2253. We review de novo, see Rowland v.

Chappell, 876 F.3d 1174, 1180 (9th Cir. 2017), and we affirm.

Ortiz alleges that his trial counsel rendered ineffective assistance under

Strickland v. Washington, 466 U.S. 668 (1984), by conceding Ortiz’s guilt to the

aggravated assault charges and by failing to research and present a self-defense

theory against those charges. The state courts’ resolution of these claims was

neither contrary to, nor an unreasonable application of, Strickland. See 28 U.S.C.

§ 2254(d)(1). As the state trial court concluded, the decision to concede a less

serious offense in order to defend against more serious ones can be a reasonable

trial strategy, and it was so here because the evidence against Ortiz as to the assault

charges was strong. See Gallegos v. Ryan, 820 F.3d 1013, 1027 (9th Cir.)

(attorney’s admission of his client’s guilt was not ineffective assistance in light of

the evidence against the client), amended on reh’g, 842 F.3d 1123 (9th Cir. 2016).

Moreover, the state appellate court reasonably concluded that Ortiz failed to show

he was prejudiced by counsel’s alleged failures in researching and presenting a

self-defense theory because there was no reasonable probability that a jury would

find a reasonable person in Ortiz’s position would think it necessary to fire

“several shots from a handgun in front of a convenience store” in response to the

2 21-15496 guards’ use of force.1

Ortiz also contends that his counsel’s performance regarding his attempted

second-degree murder and burglary charges fell below an objective standard of

reasonableness. However, he cannot show prejudice because his convictions for

these charges were vacated and the charges dismissed. See Strickland, 466 U.S. at

687. Nor does his opening brief “point us to specific instances of [defense

counsel’s] conduct that demonstrate incompetent performance” as to these

convictions. Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 2017).

We treat Ortiz’s remaining arguments as a motion to expand the certificate

of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala

v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

AFFIRMED.

1 Because Ortiz does not point to persuasive evidence showing that he acted in self- defense, the state courts’ decisions were not based on unreasonable determinations of the facts, see 28 U.S.C. § 2254(d)(2), and we presume their factual findings to be correct, see 28 U.S.C. § 2254(e)(1).

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