Fernando Romero v. Neil McDowell

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2021
• Docket: 18-56475
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FERNANDO ROMERO, No. 18-56475

Petitioner-Appellant, D.C. No. 2:14-cv-05405-ODW-AFM v.

NEIL MCDOWELL,* MEMORANDUM**

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted July 27, 2021*** Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and ROBRENO,**** District Judge.

* Neil McDowell has been substituted for his predecessor, David Holbrook, as the Warden of Ironwood State Prison under Federal Rule of Appellate Procedure 43(c)(2). ** 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). **** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. California state prisoner Fernando Romero appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas corpus petition challenging his

conviction for first-degree murder and conspiracy to commit murder. We review

de novo a district court’s decision to deny a § 2254 habeas petition. Sanders v.

Cullen, 873 F.3d 778, 793 (9th Cir. 2017). As the parties are familiar with the

facts, we do not recount them here. We affirm.

We granted a certificate of appealability (“COA”) regarding “whether trial

counsel was ineffective for failing to adequately investigate and prepare the case in

violation of appellant’s Sixth Amendment right to counsel, including whether

counsel inadequately investigated evidence regarding the victim’s time of death,

third-party culpability, or cell phone evidence,” and then also asked the parties to

address some procedural issues.

1. As a preliminary matter, we are not persuaded by the State’s argument

that Romero waived the certified issue by failing to adequately raise it in his

opening brief. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir.

2004). Romero provides sufficient argument that his trial counsel was ineffective

regarding the victim’s time of death and cell phone evidence. The only portion we

deem waived is whether his trial counsel was ineffective regarding third-party

culpability because Romero does not address it in his briefs.

2. Romero claims that his trial counsel was ineffective for stipulating to

2 cell phone evidence—which showed that Romero and his co-defendant called each

other numerous times on the night of April 26, 2007, and did so from a location

very near the victim’s house—without the benefit of investigation or expert

consultation.1 Romero primarily points to minor, non-material errors in the

stipulation. However, Romero failed to demonstrate a reasonable likelihood of a

more favorable outcome if his trial counsel had conducted additional investigation

of the cell phone evidence. See Strickland v. Washington, 466 U.S. 668, 694

(1984) (discussing prejudice requirement for an ineffective assistance of counsel

claim).

3. Romero also claims that his trial counsel was ineffective for

stipulating regarding the victim’s time of death.2 Specifically, the parties

stipulated that: “The exact time of death cannot be ascertained. However, there is

nothing inconsistent with the victim having been killed the evening of 4-26-07.”

Romero contends that the stipulation contradicts a statement by a detective

recounting that the coroner estimated that the victim was killed the morning of

April 27, 2007. However, the state court did not unreasonably determine that

Romero’s trial counsel made a sound tactical decision to enter into the stipulation

1 Like the district court, we review this claim de novo out of an abundance of caution. 2 Like the district court, we review this claim under the deferential standard of the Antiterrorism and Effective Death Penalty Act. See 28 U.S.C. § 2254(d).

3 regarding the victim’s time of death because he believed that an actual time of

death could not be established favorably to Romero and because calling the

coroner to testify could result in prejudicial testimony, including a gruesome

description of the victim’s body. See id. at 689 (discussing deficient performance

requirement for an ineffective assistance of counsel claim).

4. Because we conclude that the district court properly denied Romero’s

ineffective assistance of counsel claims on the merits, we need not reach the

parties’ arguments regarding procedural default. See Ayala v. Chappell, 829 F.3d

1081, 1096 (9th Cir. 2016) (“[C]ourts are empowered to, and in some cases should,

reach the merits of habeas petitions if they are . . . clearly not meritorious despite

an asserted procedural bar.” (alteration in original) (citation omitted)).

5. Our COA ordered the parties to address “whether the magistrate judge

exceeded his authority by denying appellant’s motion for a stay and abeyance

pursuant to Rhines v. Weber, 544 U.S. 269 (2005). See Mitchell v. Valenzuela, 791

F.3d 1166 (9th Cir. 2015).” Mitchell held that a magistrate judge has no authority

to deny a Rhines motion which is dispositive of unexhausted claims, but instead

must submit a report and recommendation to the district court for de novo review.

791 F.3d at 1171-74.

Here, although the magistrate judge denied Romero’s motion for a Rhines

stay (prior to Mitchell’s guidance), Romero’s unexhausted claims were never

4 actually dismissed and his case was effectively stayed while he exhausted them in

state court. The district court eventually denied the claims on their merits.

Therefore, the magistrate judge’s denial of the Rhines motion was not dispositive

of the unexhausted claims and any error was harmless. Mitchell, 791 F.3d at 1172

n.5, 1174.

6. Finally, we decline Romero’s request to expand the COA to include

whether the district court abused its discretion by denying Romero’s motions to

appoint counsel. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

AFFIRMED.