Nunez v. Gamboa

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2025
• Docket: 23-2562
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISAIAS LOPEZ NUNEZ, No. 23-2562 D.C. No. Petitioner - Appellant, 3:21-cv-02046-JES-SBC v. MEMORANDUM* MARTIN GAMBOA,

Respondent - Appellee.

Appeal from the United States District Court for the Southern District of California James E. Simmons Jr., District Judge, Presiding

Submitted February 3, 2025** Pasadena, California

Before: MILLER, LEE, and DESAI, Circuit Judges.

Isaias Lopez Nunez appeals the district court’s order denying his 28 U.S.C.

§ 2254 habeas corpus petition challenging his prison sentence for sexual abuse of

his three daughters. Nunez was convicted of twelve counts of rape of a child and

* 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). three counts of committing a lewd act on a child. He was sentenced to fifteen

consecutive terms of fifteen years to life. We have jurisdiction under 28 U.S.C.

§ 2253, and we affirm.1

We review de novo a district court’s denial of a 28 U.S.C. § 2254 habeas

corpus petition. Patsalis v. Shinn, 47 F.4th 1092, 1097 (9th Cir. 2022). We review

ineffective assistance of counsel claims in the context of excusing a procedural

default de novo. Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016).

Nunez’s ex post facto claim is procedurally defaulted. Nunez claims that the

trial court violated the ex post facto clause by sentencing him on his three lewd act

counts under the law in effect at the time of his sentencing rather than at the time of

his offenses. The state court deemed Nunez’s claim forfeited under California’s

contemporaneous objection rule because he did not request probation or object to

the lack of probation at his sentencing hearing.

We may not hear a claim in a habeas action that has been “decided by a state

court if the decision of that court rests on a state law ground that is independent of

the federal question and adequate to support the judgment.” Coleman v. Thompson,

501 U.S. 722, 729 (1991). We must defer to the state court’s determination that

Nunez forfeited his claim because that determination is an independent and adequate

1 We construe Nunez’s briefing of two uncertified issues as a motion to expand the certificate of appealability, see 9th Cir. R. 22-1(e), and deny it.

2 23-2562 state ground for the court’s decision. See Zapata v. Vasquez, 788 F.3d 1106, 1111–

12 (9th Cir. 2015) (finding claim procedurally defaulted under California’s

contemporaneous objection rule).

Nunez argues that ex post facto claims are exempted from forfeiture under

California law. But the state court rejected that argument, and because “state courts

are the ultimate expositors of state law,” we must abide “by the state’s construction”

unless it seems “that its interpretation is an obvious subterfuge to evade the

consideration of a federal issue.” Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994)

(citation omitted). There is no indication of any such dubious state conduct here.

Next, Nunez contends that even if he forfeited his claim, he could excuse the

procedural default under Coleman’s “cause and prejudice” standard because his

attorney rendered ineffective assistance by failing to object at sentencing. 501 U.S.

at 750. “[C]ounsel’s ineffectiveness will constitute cause only if it is an independent

constitutional violation,” id. at 755, so Nunez must meet the standard for ineffective

assistance set out in Strickland v. Washington, 466 U.S. 668 (1984). Strickland

requires the defendant to show prejudice from any deficient representation by

counsel. See Garza v. Idaho, 586 U.S. 232, 237 (2019) (quoting Strickland, 466

U.S. at 692).

Nunez cannot show prejudice. To show prejudice under Strickland, “there

[must be] a reasonable probability that,” but for the attorney error, “the result of the

3 23-2562 proceeding would have been different.” 466 U.S. at 694. Here, if Nunez’s counsel

had requested probation, the trial court’s statements at sentencing suggest a strong

probability that the outcome for Nunez would have remained the same. And even

in the unlikely event that the trial court granted Nunez probation on the three lewd

act counts, Nunez cannot show prejudice because he would nonetheless serve what

is effectively a life sentence. The trial court sentenced him to twelve consecutive

terms of fifteen years to life for his rape counts.

Because Nunez cannot prove his attorney’s lack of objection prejudiced him

under Strickland’s standard, he cannot show the cause necessary to excuse his

procedural default. Hence Nunez’s claim is procedurally defaulted.

AFFIRMED.

4 23-2562