George Pardo v. Stuart Sherman

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GEORGE PARDO, No. 16-55571

Petitioner-Appellant, D.C. No. 5:09-CV-01527-CJC-JC

v. MEMORANDUM* STUART SHERMAN, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Cormac Carney, District Judge, Presiding

Argued and Submitted April 11, 2018 Pasadena, California

Before: BEA and MURGUIA, Circuit Judges, and MOLLOY,** District Judge.

California state prisoner George Pardo appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to

28 U.S.C. § 2253, and we affirm.

We review de novo the district court’s decision to grant or deny a petition for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. a writ of habeas corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas

relief may not be granted “with respect to any claim that was adjudicated on the

merits in State court proceedings” unless the state decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). In cases where there is no reasoned

state court decision, as here, we must determine “what arguments or theories…could

have supported[] the state court’s decision.” Harrington v. Richter, 562 U.S. 86,

102 (2011).

We certified two issues for appeal: (1) whether trial counsel rendered

ineffective assistance by failing to investigate and call certain possible defense

witnesses, and (2) whether Pardo’s statements to police were admitted in violation

of his Fifth Amendment rights as interpreted by Miranda v. Arizona, 384 U.S. 436

(1966). Pardo fails to “show[] there was no reasonable basis for the state court to

deny relief.” Richter, 562 U.S. at 98.

1. Pardo argues that trial counsel was ineffective for failing to investigate and

call certain witnesses who would have 1) presented evidence of an alternative

suspect; 2) cast doubt on the veracity of Jane Doe’s mother’s testimony; and 3)

2 demonstrated that Jane Doe’s mother was neglectful of Jane Doe. Pardo “must show

that counsel’s performance was deficient” and “that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

“When § 2254(d) applies, [however,] the question is not whether counsel’s actions

were reasonable. The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105.

Pardo’s trial counsel was not ineffective for failing to pursue “every

conceivable line of . . . evidence.” Wiggins v. Smith, 539 U.S. 510, 533 (2003).

First, Pardo does not explain why trial counsel should have been aware of the

proffered fact witnesses. Trial counsel was presented with an incident and timeline

in which none of the proffered fact witnesses, nor the alleged alternative suspect,

appeared. Further, even if Pardo had been aware of the possible other-suspect

evidence, it would have been reasonable for his trial counsel to decline to present it.

The other-suspect evidence Pardo now proffers suggests that Jane Doe was injured

some time before the events of October 21. However, the primary evidence in the

case indicated Jane Doe was uninjured the morning of October 21, Pardo himself

told police that he did not observe any injuries on Jane Doe that day, and Pardo

testified at trial that he did not notice anything unusual when he changed Jane Doe.

There is therefore a reasonable argument that counsel acted “within the wide range

of reasonable professional assistance” when he focused his inquiries on what may

3 have happened to Jane Doe after she left Pardo’s care. See Strickland, 466 U.S. at

689, 691 (“The reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or actions.”). The

emergency room doctor’s failure to observe Jane Doe’s injuries does not make the

state court’s determination that trial counsel was effective unreasonable.

Additionally, the record shows that counsel was aware that the mother

previously punched out a window while holding Jane Doe and lied about living with

Jane Doe’s father. The jury heard evidence that Jane Doe’s mother had failed a drug

test, for over a week did not notice that Jane Doe had broken her collarbone, and for

a period of time Jane Doe was removed from her care by Child Protective Services.

Counsel’s decision not to present further evidence as to the mother’s shortcomings

is due strategic deference. Strickland, 466 U.S. at 690.

Pardo also argues that his trial counsel should have engaged an independent

medical expert to testify that teething may have been the cause of Jane Doe’s bloody

mouth. Even assuming that there is no reasonable basis for counsel’s failure to

investigate an independent medical opinion as to this issue, see Weeden v. Johnson,

854 F.3d 1063, 1070 (9th Cir. 2017), Pardo cannot show prejudice. Bleeding caused

by teething would not explain the extent of Jane Doe’s injuries, which included

bruising and swelling of her lip and injuries to her genitals. Pardo does not suggest

4 that his counsel erred when counsel failed to proffer an alternate expert to explain

Jane Doe’s injuries to her genitals.

2. Pardo claims that his statements to police were admitted in violation of his

Fifth Amendment rights because he was “in custody” and the police did not provide

him with a Miranda warning. However, a Miranda warning is required only if a

person is in custody, and Pardo was not in custody at the time of his police interview.

The test for whether someone is in custody is an objective one based on the

circumstances of the interrogation. Yarborough v. Alvarado, 541 U.S. 652, 667, 669

(2004). Pardo came to the police station voluntarily; prior to the interview he was

told that he could leave at any time; the interview was under an hour long; the

interview transcript indicates that the interview was not aggressive or coercive; and

Pardo was driven home and released at the interview’s conclusion. The totality of

the circumstances therefore indicates that Pardo was not in custody when he made

statements to police. United States v. Bassignani, 575 F.3d 879, 883–84 (9th Cir.

2009). Pardo’s reliance on his subjective interpretation of the situation is

unpersuasive. Yarborough, 541 U.S. at 662–63.

AFFIRMED.