Gonzalez-Rojas v. Johnson

• Court: District Court, D. Nevada
• Decided: December 28, 2022
• Docket: 2:21-cv-01652
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Carlos Gonzalez-Rojas, Case No.: 2:21-cv-01652-APG-DJA

4 Petitioner Order Denying Petition, Denying Certificate of Appealability and Closing 5 v. Case

6 Calvin Johnson, et al.,

7 Respondents

8 9 Carlos Gonzalez-Rojas filed a petition for a writ of habeas corpus under 28 U.S.C. § 10 2254. For the reasons discussed below, I deny the petition. 11 I. BACKGROUND & PROCEDURAL HISTORY 12 In 2017, a jury convicted Gonzalez-Rojas of several sexual offenses, including five 13 counts of sexual assault with use of a deadly weapon. (Exhibits 27, 45,1 see also ECF No. 1 at 2- 14 3.) The convictions stemmed from an incident when he stabbed his estranged wife, Arely 15 Lizarraga in the leg and raped her repeatedly in her apartment after accusing her of “cheating.” 16 (See ECF No. 16 at 2-5.) The state district court sentenced him to terms that amount to an 17 aggregate total of 17 years-to-life in prison. (Exhs. 47, 62.) An amended judgment of conviction 18 was entered on March 5, 2018. (Exh. 62.)2 19 20 21

22 1 Exhibits referenced in this order are the respondents’ exhibits in support of their answer, ECF No. 16, and are found at ECF Nos. 17-30. 23 2 In June 2017, Gonzalez-Rojas was tried on 11 counts; the jury convicted him of two counts and 24 the court declared a mistrial as to the remaining counts. (Exh. 27.) At a second trial in August 1 The Nevada Supreme Court affirmed Gonzalez-Rojas’ convictions in March 2019, and 2 the Nevada Court of Appeals affirmed the denial of his state postconviction habeas corpus 3 petition in August 2021. (Exhs. 77, 103.) 4 Gonzalez-Rojas filed his federal habeas petition in September 2021. (ECF No. 1.) He

5 asserts three claims that his trial counsel rendered ineffective assistance in violation of his 6 constitutional rights. (ECF No. 16). The respondents filed an answer and Gonzalez-Rojas, who 7 is represented by counsel, did not file a reply. 8 II. LEGAL STANDARDS 9 A. AEDPA Standard of Review 10 The standard of review generally applicable in habeas corpus cases is set forth in the 11 Antiterrorism and Effective Death Penalty Act (AEDPA). 12 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any 13 claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — 14 (1) resulted in a decision that was contrary to, or involved an 15 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 16 (2) resulted in a decision that was based on an unreasonable 17 determination of the facts in light of the evidence presented in the State court proceeding. 18

19 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme Court 20 precedent within the meaning of 28 U.S.C. § 2254 “if the state court applies a rule that 21 contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state court 22 confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] 23 Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 24 405–06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an 1 unreasonable application of clearly established Supreme Court precedent within the meaning of 2 28 U.S.C. § 2254(d) “if the state court identifies the correct governing legal principle from [the 3 Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s 4 case.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause

5 requires the state court decision to be more than incorrect or erroneous. The state court’s 6 application of clearly established law must be objectively unreasonable.” Id. (quoting Williams, 7 529 U.S. at 409–10) (internal citation omitted). 8 The Supreme Court has instructed that “[a] state court’s determination that a claim lacks 9 merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the 10 correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing 11 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a 12 strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. 13 at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 14 (describing the standard as a “difficult to meet” and “highly deferential standard for evaluating

15 state-court rulings, which demands that state-court decisions be given the benefit of the doubt” 16 (internal quotation marks and citations omitted)). 17 To the extent that the petitioner challenges the state court’s factual findings, the 18 “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. 19 See, e.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the 20 federal courts “must be particularly deferential” to state court factual determinations. Id. The 21 governing standard is not satisfied by a mere showing that the state court finding was “clearly 22 erroneous.” Lambert, 393 F.3d at 973. Rather, AEDPA requires substantially more deference: 23 [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar 24 circumstances if this were an appeal from a district court decision. Rather, we 1 appellate review, could not reasonably conclude that the finding is supported by the record. 2

3 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972. 4 Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct 5 unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by 6 a preponderance of the evidence that he is entitled to habeas relief. Cullen, 563 U.S. at 181. 7 B. Ineffective Assistance of Counsel 8 Federal courts address ineffective assistance of counsel (IAC) claims under the two-part 9 test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme 10 Court held that a petitioner claiming ineffective assistance of counsel has the burden of 11 demonstrating that (1) the attorney “made errors so serious that he or she was not functioning as 12 the ‘counsel’ guaranteed . . . by the Sixth Amendment,” and (2) “that the deficient performance 13 prejudiced the defense.” Williams, 529 U.S. at 3991 (quoting Strickland, 466 U.S. at 687)). To 14 establish ineffectiveness, the defendant must show that counsel’s representation fell below an 15 objective standard of reasonableness. Id. at 391 (citation and internal quotation marks omitted). 16 To establish prejudice, the defendant must show that there is a reasonable probability that, but 17 for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. 18 (citation and internal quotation marks omitted). A reasonable probability is “probability 19 sufficient to undermine confidence in the outcome.” Id. (citation and internal quotation marks 20 omitted). Additionally, any review of the attorney’s performance must be “highly deferential” 21 and must adopt “counsel’s perspective at the time” of the challenged conduct to avoid “the 22 distorting effects of hindsight.” Strickland, 466 U.S. at 689. It is the petitioner’s burden to 23 overcome the presumption that counsel’s actions might be considered sound trial strategy. Id. 24 1 Ineffective assistance of counsel under Strickland requires a showing of deficient 2 performance of counsel resulting in prejudice, “with performance being measured against an 3 objective standard of reasonableness, . . . under prevailing professional norms.” Rompilla v. 4 Beard, 545 U.S. 374, 380 (2005) (internal quotation marks and citations omitted).

5 If the state court has already rejected an IAC claim, a federal habeas court may only grant 6 relief if that decision was contrary to, or an unreasonable application of, the Strickland standard. 7 See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a strong presumption that counsel’s 8 conduct falls within the wide range of reasonable professional assistance. Id. 9 Federal review of a state supreme court’s decision on a claim of ineffective assistance of 10 counsel is “doubly deferential.” Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 11 U.S. 111, 123 (2009)). The Supreme Court has emphasized that: “We take a highly deferential 12 look at counsel’s performance . . . through the deferential lens of § 2254(d).” Id. (citations and 13 internal quotation marks omitted). Moreover, federal habeas review of an IAC claim is limited 14 to the record before the state court that adjudicated the claim on the merits. Cullen, 563 U.S. at

15 181-84. The Supreme Court has specifically reaffirmed the extensive deference owed to a state 16 court’s decision regarding claims of ineffective assistance of counsel: 17 Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and 18 § 2254(d) are both “highly deferential,” id. at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and 19 when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S. at 123. The Strickland standard is a general one, so the range of reasonable applications is 20 substantial. 556 U.S. at 124. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under 21 § 2254(d). When § 2254(d) applies, the question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. 22

23 Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of counsel 24 must apply a strong presumption that counsel’s representation was within the ‘wide range’ of 1 reasonable professional assistance.” Id. at 104 (citations and internal quotation marks omitted). 2 “The question is whether an attorney’s representation amounted to incompetence under 3 prevailing professional norms, not whether it deviated from best practices or most common 4 custom.” Id. (internal quotation marks and citations omitted).

5 III. ANALYSIS 6 A. Relevant Background Trial Testimony 7 Arely Lizarraga testified at trial that Gonzalez-Rojas picked her up from work on the day 8 in question. (Exh. 40 at 5-136.) They were living separately, but she had let him leave some 9 belongings in her apartment. She asked him to drop her at a friend’s. He drove to her apartment 10 instead, telling her he had a surprise for her. They went into her apartment; a teddy bear had 11 been destroyed and the stuffing was strewn all over. He began yelling, accusing her of cheating 12 on him. He took a knife from a bag and stabbed her in the leg. He seemed to be scared at that 13 point; he helped Lizarraga bind the wound with a shirt and helped her to the bedroom. He had 14 tied ropes to the bed. He tied her to the bed. Lizarraga testified specifically about the numerous

15 ways he raped her and beat her up. Later, she was able to grab her purse and run out the front 16 door. She ran to the front office and asked the woman there to call the police. Ultimately police 17 transported her to the hospital where she was interviewed, examined, and treated for numerous 18 injuries. On cross-examination Lizarraga denied that any part of the sex was consensual. She 19 acknowledged that she agreed with Gonzalez-Rojas that they should have a baby; she said she 20 only said that to try to calm him down and make him stop. 21 A manager of the apartment complex testified that on the morning in question a woman 22 came into the office. (Exh. 38 at 79-115.) She looked panicked and like she had been crying. 23 She was speaking Spanish and showed the manager a wound on her leg and said “pistola.” She 24 kept watching the door; when she saw a Hispanic man approach, she went into the break room 1 and closed the door. The manager and two other employees called 911. She walked the State 2 through the surveillance video that showed what she had described. Another employee who was 3 present testified that Lizarraga came into the office looking scared and pale and had two black 4 eyes and a gash on her nose. (Id. at 115-134.) A housekeeper who spoke Spanish and English

5 testified that Lizarraga said that she had been stabbed, held hostage, and raped. (Id. at 134-160.) 6 Later when the housekeeper entered Lizarraga’s apartment she found it in disarray with 7 overturned furniture, stuffed animal stuffing strewn everywhere, and what appeared to be blood 8 stains and trails of blood. 9 A sexual assault nurse testified that she examined Lizarraga. (Exh. 42 at 68-133.) She 10 observed that Lizarraga had black eyes, trauma over her cheek area, swollen lips, dried blood on 11 her nostril, stab wounds to her thigh and arm; she also identified anal and perianal injuries. 12 Las Vegas Metropolitan Police (LVMPD) Detective Nicholas Madsen testified that he 13 interviewed Lizarraga at the hospital. (Exh. 41 at 25-75.) She told him Gonzalez-Rojas took her 14 back to her apartment where she saw a teddy bear that had been cut to pieces and thrown around

15 the apartment. She screamed, and Gonzalez-Rojas stabbed her. Ultimately, he tied her to the 16 bed, beat her repeatedly, and assaulted her repeatedly with a vibrator and his penis. Madsen also 17 interviewed Gonzalez-Rojas at the police station; that interview was played for the jury. Madsen 18 testified that during the interview Gonzalez-Rojas admitted that he stabbed Lizarraga and 19 punched her repeatedly. He said she said “no, no, no” repeatedly while he sexually assaulted her. 20 B. Ineffective Assistance of Trial Counsel Claims 21 Ground 1 22 Gonzalez-Rojas argues that his trial counsel was ineffective under the Fifth, Sixth, and 23 Fourteenth Amendments for failing to move to exclude his statements to police as obtained in 24 violation of his Miranda rights. (ECF No. 1 at 17-20.) He insists that he invoked his right to 1 remain silent on two separate occasions—during his initial arrest and then also during his 2 interview at the police station. 3 The Fifth Amendment to the United States Constitution guarantees the privilege against 4 self-incrimination. In Miranda v. Arizona, 384 U.S. 436 (1996), the Supreme Court established

5 procedural safeguards to protect the exercise of the privilege against self-incrimination. Prior to 6 questioning, law enforcement must inform the suspect of his or her right to remain silent and the 7 right to have counsel present during interrogation. A suspect has the right to cut off questioning 8 at any time. Id. 9 Las Vegas Metropolitan Police Officer Matthew Rowe testified at trial that he was the 10 arresting officer. (Exh. 38 at 160-174.) He handcuffed Gonzalez-Rojas and placed him in his 11 patrol car. Rowe read Gonzalez-Rojas his Miranda rights in English; Gonzalez-Rojas indicated 12 that he understood his rights. Gonzalez-Rojas then told Rowe that he would speak to the officer, 13 but he wanted to talk to his wife first. Rowe was not going to permit Gonzalez-Rojas to speak to 14 his wife, so he stopped the questioning.

15 Police detective Nicholas Madsen testified that he interviewed Gonzalez-Rojas at the 16 police station. (ECF No. 38 at 25-75.) Madsen read him his Miranda rights. Madsen said that 17 initially Gonzalez-Rojas said that he didn’t want to say anything. Madsen said that then after 18 pausing for about 20 or 30 seconds, Gonzalez-Rojas initiated the conversation. (Id. at 43.) After 19 that Gonzalez-Rojas never said that he wanted to stop the interview or that he wanted an 20 attorney. (Id. at 71-72.) 21 Gonzalez-Rojas insists that two Miranda violations occurred—first when he told police 22 that he would only talk to them if he could speak with Arely first. He argues that Rowe properly 23 stopped questioning him but improperly placed him in an interview room at the police station. 24 1 He also contends that Madsen violated his Miranda rights when Gonzalez-Rojas told him he did 2 not want to speak to him. 3 The Nevada Court of Appeals rejected this IAC claim, reasoning that the fact that the 4 detective remained silent for about 30 seconds did not demonstrate coercion or otherwise render

5 Gonzalez-Rojas’ subsequent statements involuntary: 6 The arresting officer testified at trial that he administered Miranda warnings to Gonzalez-Rojas, who indicated he understood his rights and would 7 speak with officers if he could first speak to the victim. This was not an unambiguous invocation of his right to remain silent as it was conditioned on his 8 ability to first speak with the victim. Therefore, Gonzalez-Rojas did not demonstrate that counsel’s failure to move to exclude his statements to the 9 arresting officer was objectively unreasonable.

10 The interviewing detective testified that, after Gonzalez-Rojas was transported to an interview room, he was again administered Miranda warnings 11 and Gonzalez-Rojas indicated he understood his rights and agreed to be interviewed. At some point during the interview, Gonzalez-Rojas stated he did 12 not want to “say nothin’.” The detective took the statement to mean Gonzalez- Rojas no longer wanted to be interviewed. The officer ceased questioning, and 13 there was an approximately 30-second silence before Gonzalez-Rojas broke the silence and started speaking again. 14 The record reflects that Gonzalez-Rojas understood the Miranda warnings 15 administered to him by the detective prior to his interview. And while Gonzalez- Rojas alleges the detective was required to cease interrogation in the face of 16 Gonzalez-Rojas’ alleged invocation, the mere fact that the detective remained in silence in the interrogation room for up to 30 seconds before Gonzalez-Rojas 17 reinitiated the conversation does not amount to intimidation, coercion, or deception that would render Gonzalez-Rojas’ statements involuntary. 18 Accordingly, to the extent Gonzalez-Rojas unambiguously invoked his right to remain silent during this interview, we conclude he implicitly waived his Miranda 19 rights by making unsolicited and uncoerced statements. Therefore, Gonzalez- Rojas did not demonstrate that counsel’s failure to move to exclude his statements 20 to the detective was objectively unreasonable.

21 Moreover, in light of the significant evidence of his guilt presented at trial, Gonzalez-Rojas did not demonstrate a reasonable probability of a different 22 outcome had counsel moved to exclude his statements. Therefore, we conclude the district court did not err by denying this claim without first conducting an 23 evidentiary hearing.

24 (Exh. 103 at 4-5.) 1 Gonzalez-Rojas fails to show deficiency or prejudice. First, when he indicated that he 2 would talk to Officer Rowe if he was allowed to speak with his wife first, Rowe did not pursue 3 any questioning after that point. Once police placed Gonzalez-Rojas in an interview room, 4 Officer Madsen again read him the Miranda warnings. Madsen testified that Gonzalez-Rojas

5 expressed that he did not want to talk, paused briefly, then began talking. Gonzalez-Rojas has 6 not shown that he was coerced or intimidated into making any statements to Madsen. He has 7 failed to demonstrate that the Nevada Court of Appeals’ decision was contrary to, or involved an 8 unreasonable application of, Strickland. See 28 U.S.C. § 2254(d). I deny federal habeas relief as 9 to ground 1. 10 Ground 2 11 Gonzalez-Rojas asserts that his counsel was ineffective for failing to investigate or 12 present expert testimony regarding immigration benefits to the victim. (ECF No. 1 at 20-28.) 13 The defense filed a “motion to allow discussion of alleged victim’s immigration status at 14 trial.” (Exh. 31.) The state district court held an evidentiary hearing. A man named Carlos

15 Gonzalez testified that he was Gonzalez-Rojas’ brother. (Exh. 39 at 5-24.) He said that after the 16 incident, Lizarraga told him that Gonzalez-Rojas wasn’t going to help her with her immigration 17 paperwork, but now she would be able to get paperwork completed due to the domestic violence 18 incident. Wendy Gonzalez, Gonzalez-Rojas’ sister, testified that after the incident Lizarraga told 19 her that she was no longer going to go through Gonzalez-Rojas to obtain permanent residency 20 because she could use the domestic violence incident to get permanent residency. (Id. at 28-39.) 21 Wendy did not know why Lizarraga thought she could do that. Wendy also testified that in any 22 event Lizarraga already had permanent residency prior to the incident. The court concluded, “I 23 don’t think it panned out to anything,” and denied the motion. (Id. at 43.) Lizarraga had also 24 testified at an earlier hearing that she did not remember anyone telling her that she could become 1 a U.S. citizen faster if she was a victim of domestic violence. (Exh. 18 at 43-50.) When pressed, 2 she said that she cannot remember everything she says. She agreed she was in the U.S. on a 3 green card. On cross-examination Lizarraga said that no one ever told her that this prosecution 4 could get her citizenship faster.

5 The Nevada Court of Appeals affirmed the denial of this claim: 6 Gonzalez-Rojas claimed trial counsel was ineffective for failing to investigate or present expert testimony regarding how a conviction in the instant 7 case would positively affect the victim’s path to citizenship. Counsel filed a motion in the trial court to allow him to elicit evidence at trial regarding the 8 victim’s subjective belief as to the effect a conviction in this case would have on her immigration status. This would have allowed counsel to argue that this belief 9 constituted a motive for the victim to lie about the events. During a midtrial evidentiary hearing on the motion, counsel and the trial judge engaged in a 10 discussion regarding whether there would be an actual effect on the victim’s immigration status. The trial court concluded there would not be. In his petition, 11 Gonzalez-Rojas argued that, had counsel done a more thorough investigation or consulted with an expert, he could have successfully rebutted the trial court’s 12 conclusion as to the actual effect of a conviction. Gonzalez-Rojas failed to demonstrate counsel was objectively unreasonable for not anticipating that the 13 trial court would discuss the actual effect of a conviction rather than focusing exclusively on the victim’s subjective belief. 14 Moreover, the district court stated that the relevant inquiry was the 15 victim’s subjective belief and did not rely on the actual effect on the victim’s immigration benefits in denying counsel’s motion in limine. Additionally, 16 Gonzalez-Rojas did not specify what an expert would have said about, or how a conviction would have impacted, the victim’s actual immigration status. See 17 Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004) (providing a defendant alleging a failure to investigate must demonstrate that additional 18 investigation would have altered the outcome of the trial). He thus failed to demonstrate a reasonable probability of a different outcome at the hearing and, in 19 turn, at trial. Therefore, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing. 20

21 (Exh. 103 at 5-6.) 22 Gonzalez-Rojas fails to show deficiency or prejudice. First, his claim of counsel’s 23 deficiency is belied by the record. His counsel filed the motion and put on the available 24 witnesses. The witnesses testified that Lizarraga referred to her ability to get papers through 1 some sort of status related to suffering domestic violence. But they also testified that Lizarraga 2 already had permanent residency. The court notes that both witnesses also testified in a 3 convoluted and unclear manner. Moreover, in light of the testimony of Lizarraga, the apartment 4 complex employees, the detective and sexual assault nurse, Gonzalez-Rojas has not

5 demonstrated a reasonable probability of a different outcome at the hearing or trial. Gonzalez- 6 Rojas has failed to demonstrate that the Nevada Court of Appeals’ decision was contrary to, or 7 involved an unreasonable application of, Strickland. See 28 U.S.C. § 2254(d). I deny federal 8 habeas relief as to ground 2. 9 Ground 3 10 Finally, Gonzalez-Rojas contends that trial counsel was ineffective for failing to 11 introduce evidence of the parties’ history of consensual “make-up sex” after arguments. (ECF 12 No. 1 at 28-32.) 13 Prior to the start of the first trial, Gonzalez-Rojas made an oral motion in limine to admit 14 evidence that Lizarraga and Gonzalez-Rojas had had consensual sex two days before the

15 incident. (Exh. 18.) The state district court held an evidentiary hearing. Lizarraga testified that 16 two days before the incident she and Gonzalez-Rojas had consensual sex. (Id. at 32-38, 50-56.) 17 She also said that within the year before the incident they had had consensual oral and anal sex a 18 few times. Lizarraga agreed that when they had been together as a couple, they would 19 sometimes have sex shortly after making up after a fight. The state district court ruled that the 20 defense could ask Lizarraga if she and Gonzalez-Rojas had engaged in consensual sex two days 21 prior to the incident but precluded the defense from asking about consensual “make-up sex” 22 unless the State opened the door to such testimony. (Exh. 17 at 15-16.) 23 The Nevada Court of Appeals rejected this claim that counsel was ineffective: 24 Gonzalez-Rojas claimed trial counsel was ineffective for failing to argue 1 make-up sex after an argument. Although counsel did not reduce the request to writing, the trial court nevertheless considered Gonzalez-Rojas’ oral argument on 2 the merits before rejecting it. Gonzalez-Rojas thus failed to demonstrate that counsel was objectively unreasonable for failing to reduce the request to writing. 3 Moreover, significant evidence of Gonzalez-Rojas’ guilt was presented at 4 trial. The victim testified that he stabbed her, restrained her, and forced her to engage in sexual acts against her will. Employees at the motel where the incident 5 occurred testified that, when the victim approached them for help, she was crying, scared, and shaking. She had a stab wound, two black eyes, and a gash on her 6 nose. She repeatedly told an employee not to let Gonzalez-Rojas into the room she was in and explained that he had stabbed her, tied her up, and sexually 7 assaulted her. The nurse that examined the victim testified that the victim suffered significant injuries, including lacerations to the bridge of her nose, 8 lacerations to her right thigh and left arm, and swelling in her lips. She explained that the victim was distressed to the point of crying and told her she thought she 9 was going to die during the event. Finally, Gonzalez-Rojas did not allege what additional argument counsel should have made in a written brief that was not 10 made orally. For the foregoing reasons, Gonzalez-Rojas failed to demonstrate a reasonable probability of a different result at either the motion-in-limine hearing 11 or trial. Therefore, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing. 12

13 (Exh. 103 at 3-4.) 14 Defense counsel cannot overcome the presumption that counsel performed effectively 15 here. His counsel argued for the admission of the make-up sex testimony. Lizarraga’s testimony 16 at the evidentiary hearing did not establish a pattern of make-up sex. Again, the State presented 17 substantial evidence that the incident was a violent attack. Thus, even if an alleged pattern of 18 make-up sex earlier when they were in a relationship was presented to the jury, there was no 19 reasonable probability that the jury would have concluded that the incident involving stabbing, 20 beating, and rape was consensual. Gonzalez-Rojas cannot demonstrate a reasonable probability 21 of a different outcome at trial. Gonzalez-Rojas has failed to demonstrate that the Nevada Court 22 of Appeals’ decision was contrary to, or involved an unreasonable application of, Strickland. See 23 28 U.S.C. § 2254(d). Accordingly, I deny federal habeas relief as to ground 3. 24 1 IV. CERTIFICATE OF APPEALABILITY 2 This 1s a final order adverse to the petitioner. As such, Rule 11 of the Rules Governing 3] Section 2254 Cases requires me to issue or deny a certificate of appealability (COA). I have sua sponte evaluated the claims within the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 6 A COA may issue only when the petitioner “has made a substantial showing of the denial 7|| of a constitutional right.” 28 U.S.C. § 2253(c)(2). With respect to claims rejected on the merits, 8|| a petitioner “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 10}| (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will only if reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court’s procedural ruling was correct. Id. 13 None of my determinations and rulings in adjudicating Gonzalez-Rojas’ petition meets 14|| the Slack standard. I therefore decline to issue a certificate of appealability regarding the resolution of Gonzalez-Rojas’ petition. 16 V. CONCLUSION 17 I THEREFORE ORDER that the petition for a writ of habeas corpus under 28 U.S.C. 18]| § 2254 (ECF No. 1) is denied. 19 I FURTHER ORDER that a certificate of appealability is denied. 20 I FURTHER ORDER the Clerk of Court to enter judgment accordingly and close this 21]| case. 22 Dated: December 28, 2022 23 c oP US. District Judge Andrew P. Gordon 24