NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ARMANDO RAMIREZ, No. 19-16825
Petitioner-Appellant, D.C. No. 3:13-cv-00025-MMD-CBC v.
BAKER, Warden; ATTORNEY GENERAL MEMORANDUM* FOR THE STATE OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted October 13, 2020 San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,** District Judge.
Nevada state prisoner Armando Ramirez appeals from the denial of his
petition for a writ of habeas corpus in which he challenged his convictions for
conspiracy to commit murder and first degree murder with use of a deadly weapon.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. The district court granted a certificate of appealability as to his claims that trial
counsel was constitutionally ineffective for failing to object to (1) the jury
instruction on vicarious coconspirator liability for the murder charge, which
included a reference to the “natural and probable consequences” doctrine, and (2)
the jury instruction on aiding-and-abetting liability for the deadly weapon
enhancement.1 We affirm.
1. Exhaustion. Ramirez argues that these claims were not procedurally
defaulted because he fairly presented them to the Nevada Supreme Court on direct
review. He contends that after his substantive discussion of how the improper jury
instructions violated his due process rights, he then raised these ineffective
assistance claims in the alternative and cited to Strickland v. Washington, 466 U.S.
668 (1984). Accordingly, even though the Nevada Supreme Court did not
specifically address his ineffective assistance of counsel claims, Ramirez asserts
that he nevertheless exhausted these grounds for relief.
We agree. See Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) (holding
that petitioner fairly presented his claim to the state court by using phrase
1 In addition to these certified issues, Ramirez’s brief also discusses an uncertified issue: whether he properly exhausted Ground 3 of his petition—i.e., his claim that the state trial court erred by not instructing the jury that it was the State’s burden to prove that he did not act in self-defense or in the heat of passion. We construe this discussion as a motion to expand the certificate of appealability, see 9th Cir. R. 22-1(e), and DENY the motion.
2 “ineffective assistance of counsel” and citing the Sixth Amendment and
Strickland). And in these situations—where the petitioner fairly presented the Sixth
Amendment claim to the state court and the state court addressed a related claim
but did not expressly acknowledge that it was deciding the Sixth Amendment
claim in question—we “must presume that the federal claim was adjudicated on
the merits.” Johnson v. Williams, 568 U.S. 289, 301 (2013). This is especially true
where the “claims are so similar mak[ing] it unlikely that the [state appellate court]
decided one while overlooking the other.” Id. at 305.
Here, Ramirez’s due process and ineffective assistance claims were so
intertwined—indeed, they both required the same showing of prejudice—that we
must presume that the Nevada Supreme Court adjudicated his ineffective
assistance claims on the merits. Id. at 293; see also Sturgeon v. Chandler, 552 F.3d
604, 611-12 (7th Cir. 2009) (when the state court addresses the claim at issue in a
different context, the claim is still deemed to be adjudicated on the merits). Its
decision is therefore entitled to deference under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d).
2. Deference under AEDPA. When AEDPA applies, federal courts may
only grant habeas relief when a state court decision is “contrary to, or involve[s] an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or is “based on an unreasonable
3 determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). To be “contrary to” federal law, the state court
must have “arrive[d] at a conclusion opposite to that reached by [the Supreme
Court] on a question of law” or have “decide[d] a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). Moreover, to be “unreasonable,” it is not
enough that the state court’s decision was incorrect. Harrington v. Richter, 562
U.S. 86, 101 (2011). Rather, it must be “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
3. Vicarious coconspirator liability instruction. It is undisputed that
trial counsel performed deficiently by failing to object to the coconspirator liability
instruction in light of Bolden v. State, 124 P.3d 191 (Nev. 2005), which held that
referencing the “natural and probable consequences” doctrine for specific intent
crimes (e.g., murder) is improper under Nevada law because it permits defendants
to be convicted without the statutory intent required for the offense. Id. at 199-202.
In this case, however, the Nevada Supreme Court held that Ramirez failed to
demonstrate that the instructional error affected the outcome. In addition to finding
Ramirez guilty of murder, the jury also found him guilty of conspiracy to commit
murder—which, given the conspiracy instructions, necessarily required it to find
4 that “Ramirez possessed the specific intent to murder Ortega.” ER 72. As such,
“the jury would have convicted Ramirez of first-degree murder even without the
erroneous instruction.” ER 73. Because there is no reasonable probability that “the
result of the proceeding would have been different” had trial counsel objected to
the instruction, it follows that his failure to do so was not prejudicial for purposes
of Ramirez’s ineffective assistance claim. Strickland, 466 U.S. at 694. The Nevada
Supreme Court’s decision was therefore neither contrary to, nor an unreasonable
application of, clearly established Federal law.
4. Instruction on aiding-and-abetting liability for the deadly weapon
enhancement. It is likewise undisputed that trial counsel performed deficiently by
not objecting to this instruction, which permitted the jury to impose the deadly
weapon enhancement under an aiding-and-abetting theory but failed to also specify
that the unarmed participant must have knowledge of and control over the weapon.
See Anderson v. State, 600 P.2d 241, 243-44 (Nev. 1979). But again, the Nevada
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ARMANDO RAMIREZ, No. 19-16825
Petitioner-Appellant, D.C. No. 3:13-cv-00025-MMD-CBC v.
BAKER, Warden; ATTORNEY GENERAL MEMORANDUM* FOR THE STATE OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted October 13, 2020 San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,** District Judge.
Nevada state prisoner Armando Ramirez appeals from the denial of his
petition for a writ of habeas corpus in which he challenged his convictions for
conspiracy to commit murder and first degree murder with use of a deadly weapon.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. The district court granted a certificate of appealability as to his claims that trial
counsel was constitutionally ineffective for failing to object to (1) the jury
instruction on vicarious coconspirator liability for the murder charge, which
included a reference to the “natural and probable consequences” doctrine, and (2)
the jury instruction on aiding-and-abetting liability for the deadly weapon
enhancement.1 We affirm.
1. Exhaustion. Ramirez argues that these claims were not procedurally
defaulted because he fairly presented them to the Nevada Supreme Court on direct
review. He contends that after his substantive discussion of how the improper jury
instructions violated his due process rights, he then raised these ineffective
assistance claims in the alternative and cited to Strickland v. Washington, 466 U.S.
668 (1984). Accordingly, even though the Nevada Supreme Court did not
specifically address his ineffective assistance of counsel claims, Ramirez asserts
that he nevertheless exhausted these grounds for relief.
We agree. See Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) (holding
that petitioner fairly presented his claim to the state court by using phrase
1 In addition to these certified issues, Ramirez’s brief also discusses an uncertified issue: whether he properly exhausted Ground 3 of his petition—i.e., his claim that the state trial court erred by not instructing the jury that it was the State’s burden to prove that he did not act in self-defense or in the heat of passion. We construe this discussion as a motion to expand the certificate of appealability, see 9th Cir. R. 22-1(e), and DENY the motion.
2 “ineffective assistance of counsel” and citing the Sixth Amendment and
Strickland). And in these situations—where the petitioner fairly presented the Sixth
Amendment claim to the state court and the state court addressed a related claim
but did not expressly acknowledge that it was deciding the Sixth Amendment
claim in question—we “must presume that the federal claim was adjudicated on
the merits.” Johnson v. Williams, 568 U.S. 289, 301 (2013). This is especially true
where the “claims are so similar mak[ing] it unlikely that the [state appellate court]
decided one while overlooking the other.” Id. at 305.
Here, Ramirez’s due process and ineffective assistance claims were so
intertwined—indeed, they both required the same showing of prejudice—that we
must presume that the Nevada Supreme Court adjudicated his ineffective
assistance claims on the merits. Id. at 293; see also Sturgeon v. Chandler, 552 F.3d
604, 611-12 (7th Cir. 2009) (when the state court addresses the claim at issue in a
different context, the claim is still deemed to be adjudicated on the merits). Its
decision is therefore entitled to deference under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d).
2. Deference under AEDPA. When AEDPA applies, federal courts may
only grant habeas relief when a state court decision is “contrary to, or involve[s] an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or is “based on an unreasonable
3 determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). To be “contrary to” federal law, the state court
must have “arrive[d] at a conclusion opposite to that reached by [the Supreme
Court] on a question of law” or have “decide[d] a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). Moreover, to be “unreasonable,” it is not
enough that the state court’s decision was incorrect. Harrington v. Richter, 562
U.S. 86, 101 (2011). Rather, it must be “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
3. Vicarious coconspirator liability instruction. It is undisputed that
trial counsel performed deficiently by failing to object to the coconspirator liability
instruction in light of Bolden v. State, 124 P.3d 191 (Nev. 2005), which held that
referencing the “natural and probable consequences” doctrine for specific intent
crimes (e.g., murder) is improper under Nevada law because it permits defendants
to be convicted without the statutory intent required for the offense. Id. at 199-202.
In this case, however, the Nevada Supreme Court held that Ramirez failed to
demonstrate that the instructional error affected the outcome. In addition to finding
Ramirez guilty of murder, the jury also found him guilty of conspiracy to commit
murder—which, given the conspiracy instructions, necessarily required it to find
4 that “Ramirez possessed the specific intent to murder Ortega.” ER 72. As such,
“the jury would have convicted Ramirez of first-degree murder even without the
erroneous instruction.” ER 73. Because there is no reasonable probability that “the
result of the proceeding would have been different” had trial counsel objected to
the instruction, it follows that his failure to do so was not prejudicial for purposes
of Ramirez’s ineffective assistance claim. Strickland, 466 U.S. at 694. The Nevada
Supreme Court’s decision was therefore neither contrary to, nor an unreasonable
application of, clearly established Federal law.
4. Instruction on aiding-and-abetting liability for the deadly weapon
enhancement. It is likewise undisputed that trial counsel performed deficiently by
not objecting to this instruction, which permitted the jury to impose the deadly
weapon enhancement under an aiding-and-abetting theory but failed to also specify
that the unarmed participant must have knowledge of and control over the weapon.
See Anderson v. State, 600 P.2d 241, 243-44 (Nev. 1979). But again, the Nevada
Supreme Court held that the instructional error did not affect the outcome because
the evidence established that the jury imposed the enhancement based on a finding
that Ramirez actually used a firearm as a principal. The Court noted that (1) only
Ramirez, his coconspirator, and the victim were outside when the shooting
happened, and the medical examiner found bullets from two different guns in the
victim’s body, (2) the maintenance person saw the shooter get into the driver’s seat
5 of the getaway truck, and other witnesses confirmed Ramirez was the driver, (3) a
witness saw Ramirez throw what sounded like a gun into a dumpster immediately
after the shooting, and (4) Ramirez later confessed to two different people.
Because this evidence established that the jury did not rely on an aiding-and-
abetting theory, the Nevada Supreme Court concluded that the jury still would
have imposed the enhancement even if it had been properly instructed. And since
the result would have been the same even if trial counsel had objected, his failure
to do so was not prejudicial under Strickland, 466 U.S. at 694. Ramirez fails to
point to any U.S. Supreme Court case finding a constitutional violation on a set of
“facts that are materially indistinguishable,” Williams, 529 U.S. at 406, nor does he
establish that the Nevada Supreme Court’s application of Strickland’s prejudice
prong was “so lacking in justification that there was an error . . . beyond any
possibility for fairminded disagreement.” 2 Richter, 562 U.S. at 103.
AFFIRMED.
2 In arguing that the Nevada Supreme Court would have reversed had trial counsel objected, Ramirez points to facts that are either irrelevant to these claims (e.g., the altercation in the apartment, which would only relate to his self-defense instruction claim), or that were within the province of the jury to weigh and resolve (e.g., the fact that no one directly saw Ramirez shoot the victim, or that the maintenance person believed the shooter wore a white shirt).