Perez v. Baker

• Court: District Court, D. Nevada
• Decided: September 14, 2020
• Docket: 3:17-cv-00538
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT

5 DISTRICT OF NEVADA

NOE ORTEGA PEREZ, Case No. 3:17-cv-00538-HDM-CLB 7

Petitioner, 8 v. ORDER

9 BAKER, WARDEN, et al.,

10 Respondents.

11 This is a counseled petition for a writ of habeas corpus 12 pursuant to 28 U.S.C. § 2254, filed by a Nevada state prisoner. 13 The petitioner, Noe Ortega Perez, challenges his 2010 state court 14 conviction, following a jury trial, of six counts of lewdness with 15 a child under the age of 14 and two counts of sexual assault with 16 a minor under 14 years of age. (Pet. Ex. 33).1 The first amended 17 petition comes before the court for consideration of the merits. 18 (ECF No. 17). Respondents have answered (ECF No. 28), and the 19 petitioner has filed a reply (ECF No. 37). 20 I. Factual and Procedural Background 21 On April 17, 2009, the petitioner was charged by way of 22 indictment with eight counts of lewdness with a child under the 23 age of 14 and two counts of sexual assault with a minor under 14 24 25

26 1 The exhibits cited in this order, comprising the relevant state court record, are located at ECF Nos. 18-21, 23 and 29-30. The petitioner’s 27 exhibits, located at ECF Nos. 18-21 and 23, are cited as Pet. Exs. The 28 respondents’ exhibits, located at ECF Nos. 29-30, are cited as Resp. Exs. 1 years of age, for acts that he engaged in with his 13-year-old 2 niece-by-marriage, R.B., on September 13, 2008. (Pet. Exs. 3-10).2 3 On September 2, 2009, the State noticed the expert testimony 4 of Dr. John Paglini. (Resp. Ex. 11). The notice stated that Dr. 5 Paglini would “testify as to grooming techniques used upon 6 children.” (Id.) Attached to the notice was Dr. Paglini’s 7 curriculum vitae. (Id.) On October 12, 2009, defense counsel moved 8 to exclude Dr. Paglini’s testimony on the grounds that the notice 9 was insufficient. (Pet. Ex. 15). The court denied the motion. (Pet. 10 Ex. 14 (Tr. 23)). 11 At the trial, which commenced on October 15, 2009, the 12 following relevant evidence was presented. 13 On September 12, 2008, the petitioner, his wife, Maria Perez, 14 and their 13-year-old niece R.B., traveled by car to Las Vegas. 15 (Pet. Ex. 19 (Tr. 66)). A week prior, the petitioner told Maria 16 Perez that he had purchased three tickets for a concert in the 17 city and that they should bring R.B. along. (Pet. Ex. 20 (Tr. 18 133)). 19 On the way to Las Vegas, the petitioner, Maria Perez, and 20 R.B. stopped at a restaurant, where the petitioner played footsie 21 with R.B. under the table. (Pet. Ex. 19 (Tr. 67)). After checking 22 into the hotel room, they walked down Las Vegas Boulevard. As Maria 23 Perez walked in the front, the petitioner and R.B. held hands. 24 (Id. at 68-69). Maria Perez noticed during the walk that the 25 petitioner was grabbing R.B.’s shoulder. (Pet. Ex. 20 (Tr. 131- 26 32)). To R.B., Maria Perez appeared upset when she saw this. (Pet. 27 Ex. 19 (Tr. 70)).

28 2 One of the lewdness counts was later dropped. (Pet. Exs. 13, 16). 1 Later that night, back in the hotel room, the petitioner 2 kissed R.B. while Maria Perez was in the bathroom. (Id. at 71-77). 3 The next day while swimming at the hotel pool, the petitioner 4 flirtatiously touched R.B. under the water. (Id. at 78)). R.B. 5 told the petitioner that she was enjoying the trip and that she 6 wished she could be there alone with him. (Id. at 79). Around 2 or 7 3 p.m., they returned to the hotel room, where first R.B. and then 8 Maria Perez took a shower. (Id. at 80-81). While Maria Perez was 9 in the bathroom, the door slightly ajar, the petitioner began to 10 kiss R.B. (Id. 83-84). The petitioner paused to go into the 11 bathroom and check in on Maria Perez, and he closed the bathroom 12 door upon his return. (Id. at 84-85). The petitioner then knelt in 13 front of R.B., who was by then sitting on the corner of one of the 14 beds. (Id. at 85-86). They kissed again, then lay on the bed, where 15 the petitioner pulled down R.B.’s pants and panties. (Id. at 86- 16 87). The petitioner then touched and penetrated R.B.’s vagina with 17 his fingers and tongue and kissed her breasts. (Id. at 88-89). 18 R.B. testified that she did not want to kiss the petitioner 19 but did not tell him no and in fact kissed him back because she 20 had feelings for him and she wanted him to know that. (Id. at 134- 21 36). She testified that she told the petitioner she wanted to be 22 alone with him because of those feelings, but that she did not 23 expect him to do all the things he did. (Id. at 98-99, 137, 139). 24 She was surprised when he pulled her pants down, and she did not 25 want him to pull her pants down, but she did not scream because 26 she was afraid Maria Perez would be mad and did not stop the 27 petitioner because she was afraid of losing his trust. (Id. at 28 152, 166). 1 Maria Perez came out of the bathroom to retrieve a sponge, 2 saw R.B. and the petitioner together on the edge of the bed, and 3 began to yell. (Id. at 89; Pet. Ex. 20 (Tr. 141-43)). Hitting the 4 petitioner, Maria Perez asked what was going on. (Pet. Ex. 20 (Tr. 5 144-45)). Neither the petitioner nor R.B. responded. (Id. at 145). 6 R.B. quickly pulled up her pants and the petitioner stepped back. 7 (Pet. Ex. 19 (Tr. 92); Pet. Ex. 20 (Tr. 142-43)). Maria Perez 8 grabbed and opened her cell phone, and the petitioner knocked it 9 out of her hands. (Pet. Ex. 19 (Tr. 93)). Yelling, screaming, and 10 crying, Maria Perez asked R.B. what happened. When R.B. did not 11 answer, Maria Perez began to slap her. (Id. at 93-94)). As the 12 petitioner pulled Maria Perez off R.B., hotel security knocked at 13 the door. (Id. at 94-95). 14 The two hotel security officers who responded to the room 15 heard arguing and things being thrown around as they approached. 16 (Pet. Ex. 22 (Tr. 31-33)). After they knocked, the petitioner 17 opened the door and said, “I didn’t do anything.” (Id. at 33). The 18 petitioner then went down the hallway with one officer while R.B. 19 and Maria Perez went with the other officer. (Id. at 34). Maria 20 Perez, who was crying, shaking and very upset, told the officer 21 that when she had opened the door she saw R.B.’s pants and panties 22 down to her upper thigh, which she indicated by pointing to her 23 upper thigh. (Id. at 35-36). Maria Perez said she wanted to press 24 charges, so the officer took her to another location to fill out 25 voluntary statements. (Id. at 36-37). The officer wrote down what 26 Maria Perez said verbatim and read it back to her before Maria 27 Perez signed it. (Id. at 38-39). 28 1 When the police arrived, Maria Perez reported that she saw 2 the petitioner grabbing R.B.’s chest and kissing R.B. and that 3 R.B.’s pants were down around her ankles. (Pet. Ex. 22 (Tr. 65)). 4 She also stated that she had tried to call the police but the 5 petitioner had snatched her cell phone out of her hands. (Id. at 6 110-11). Maria Perez stated that she had become suspicious of the 7 petitioner’s relationship with R.B. earlier in the day. (Pet. Ex. 8 20 (Tr. 163-64)). 9 At trial, however, Maria Perez denied both that R.B.’s pants 10 were down and that she told hotel security or the police as much. 11 (Pet. Ex. 20 (Tr. 144, 151, 160); Pet. Ex. 22 (Tr. 17-20)). She 12 testified that R.B. and the petitioner were not lying down, that 13 the petitioner was not on top of R.B., and that they were not 14 kissing; she testified she saw no part of the petitioner in or 15 near R.B.’s vagina. (Pet. Ex. 22 (Tr. 17-20)). She also denied 16 that the petitioner had prevented her from calling the police. 17 (Pet. Ex. 20 (Tr. 148)). Maria Perez testified that R.B. claimed 18 the petitioner forced her only after she threatened to tell R.B.’s 19 mother what had happened. (Pet. Ex. 22 (Tr. 28)). 20 The petitioner told police that he kissed R.B. on the neck, 21 that he had romantic feelings toward her, and that R.B. was a 22 woman. (Pet. Ex. 22 (Tr. 126-27)). He admitted to telling her he 23 was falling in love with her before their trip. (Id. at 130-31). 24 He denied having sex with R.B. (Id. at 131). 25 R.B. told security that the petitioner had pinned her down on 26 the bed and touched her and that she tried to push him off. (Pet. 27 Ex. 19 (Tr. 97-98, 141-42)). She told police that she could feel 28 the petitioner’s erect penis and that she had been wearing a robe. 1 ( at 90-91, 173-75). At trial, she testified that none of this 2 was true. (Id. at 90-91, 97-98, 143, 173-75). R.B. testified that 3 she lied because she was afraid that if she told the truth, Maria 4 Perez would leave her alone in Vegas. (Id. at 97-98, 151). For the 5 same reason, she did not tell police that the petitioner put his 6 finger and tongue in her vagina. (Id. at 148-49). When asked if 7 she remembered this first report and whether all of it was true, 8 R.B. said, “Most of it was true and most of it was a lie.” (Id. at 9 150). 10 A week after the Las Vegas incident, R.B. decided to tell her 11 family the truth. (Pet. Ex. 19 (Tr. 144)). She explained to them 12 that she and the petitioner had been kissing and were together. 13 (Id. at 100-01). 14 R.B. testified that she had known the petitioner her entire 15 life. (Pet. Ex. 19 (Tr. 49)). The summer before the incident, their 16 relationship began to change and the petitioner started calling 17 and texting her and acting romantically toward her. (Id. at 50- 18 54, 128-31). In June 2008, the petitioner winked at R.B. during a 19 family gathering. (Id. at 122-23). At another gathering, he grabbed 20 and rubbed R.B.’s feet. (Id. at 124, 127). The petitioner told 21 R.B. that he had feelings for her, and that he was uncomfortable 22 when she was around other boys; he also described to her dreams of 23 a sexual nature he had about her. (Id. at 54, 64-66). One day, 24 when R.B. and the petitioner were alone in a car, he touched her 25 thigh and hand and then they began kissing. (Id. at 63-64). 26 During trial, Dr. Paglini was called and asked whether, in 27 the situation of “a 13-year-old niece who had known her 33-year- 28 old uncle for her whole life and seen him on a regular basis,” the 1 following hypotheticals occurring “over about a three or four month 2 period,” constituted grooming, (Pet. Ex. 20 (Tr. 54-62)): the 3 perpetrator (1) “touching the nieces [sic] foot under the table at 4 family parties, maybe winking at the niece”, (id. at 54); (2) 5 making “phone calls . . . to the individual who is being groomed” 6 telling her how pretty she was, (id. at 57-58); (3) making 7 “comments … that … the … alleged perpetrator thought that this 8 child was someone he could trust,” (id. at 58); (4) spending more 9 time with the niece over the three-month period, with touching and 10 winking, (id. at 59); (5) trying to get the 13-year-old alone with 11 him, (id. at 59); (6) while alone, holding his niece’s hand, 12 touching her thigh, and French kissing her, (id. at 59); (7) making 13 statements to his niece that he was concerned about her spending 14 time with other boys, (id. at 60); (8) telling the niece about a 15 dream he had about taking her clothes off, (id. at 60); (9) sitting 16 at a table with his wife and touching the niece’s foot under the 17 table, (id. at 61); (10) while out walking with his wife and niece, 18 with his wife in front, grabbing his niece and putting his arm 19 around her, (id. at 61-62); (11) touching the niece under water 20 while swimming, (id. at 62); and (12) inviting the niece on an 21 out-of-town trip to attend a concert, (id. at 62). Dr. Paglini 22 responded that all of it was potential grooming. (Id. at 58-60, 23 62). 24 Additionally, the State introduced a phone call between the 25 petitioner and his wife that was recorded while the petitioner was 26 incarcerated. (Pet. Ex. 21). As defense counsel refused to 27 stipulate to foundation, the State first called a witness from the 28 prison to authenticate the phone call. 1 Ultimately, the jury found the petitioner guilty on all but 2 one count. (Pet. Ex. 25). The petitioner was then sentenced to 3 several concurrent terms of imprisonment, including two terms of 4 life with the possibility of parole after thirty-five years. (Pet. 5 Ex. 33). 6 The petitioner pursued a direct appeal and a state 7 postconviction petition and appeal. Failing to obtain relief in 8 state court, the petitioner filed the instant federal habeas 9 petition. 10 II. Standard 11 28 U.S.C. § 2254(d) provides the legal standards for this 12 Court’s consideration of the merits of the petition in this case:

13 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State 14 court shall not be granted with respect to any claim that was adjudicated on the merits in State court 15 proceedings unless the adjudication of the claim –

16 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 17 established Federal law, as determined by the Supreme Court of the United States; or 18

(2) resulted in a decision that was based on an 19 unreasonable determination of the facts in light of the evidence presented in the State court 20 proceeding.

21 AEDPA “modified a federal habeas court’s role in reviewing 22 state prisoner applications in order to prevent federal habeas 23 ‘retrials’ and to ensure that state-court convictions are given 24 effect to the extent possible under law.” Bell v. Cone, 535 U.S. 25 685, 693-694 (2002). This court’s ability to grant a writ is 26 limited to cases where “there is no possibility fairminded jurists 27 could disagree that the state court’s decision conflicts with 28 1 [Supreme Court] precedents.” , 562 U.S. 86, 2 102 (2011). The Supreme Court has emphasized “that even a strong 3 case for relief does not mean the state court’s contrary conclusion 4 was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 5 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 6 (describing the AEDPA standard as “a difficult to meet and highly 7 deferential standard for evaluating state-court rulings, which 8 demands that state-court decisions be given the benefit of the 9 doubt”) (internal quotation marks and citations omitted.) 10 A state court decision is contrary to clearly established 11 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, 12 “if the state court applies a rule that contradicts the governing 13 law set forth in [the Supreme Court’s] cases” or “if the state 14 court confronts a set of facts that are materially 15 indistinguishable from a decision of [the Supreme Court] and 16 nevertheless arrives at a result different from [the Supreme 17 Court’s] precedent.” Andrade, 538 U.S. 63 (quoting Williams v. 18 Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 19 694). 20 A state court decision is an unreasonable application of 21 clearly established Supreme Court precedent, within the meaning of 22 28 U.S.C. § 2254(d), “if the state court identifies the correct 23 governing legal principle from [the Supreme Court’s] decisions but 24 unreasonably applies that principle to the facts of the prisoner’s 25 case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). 26 The “unreasonable application” clause requires the state court 27 decision to be more than incorrect or erroneous; the state court’s 28 1 application of clearly established law must be objectively 2 unreasonable. Id. (quoting Williams, 529 U.S. at 409). 3 To the extent that the state court’s factual findings are 4 challenged, the “unreasonable determination of fact” clause of § 5 2254(d)(2) controls on federal habeas review. E.g., Lambert v. 6 Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires 7 that the federal courts “must be particularly deferential” to state 8 court factual determinations. Id. The governing standard is not 9 satisfied by a showing merely that the state court finding was 10 “clearly erroneous.” Id. at 973. Rather, AEDPA requires 11 substantially more deference:

12 .... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court 13 record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district 14 court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of 15 appellate review, could not reasonably conclude that the finding is supported by the record. 16

17 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also 18 Lambert, 393 F.3d at 972. 19 Under 28 U.S.C. § 2254(e)(1), state court factual findings 20 are presumed to be correct unless rebutted by clear and convincing 21 evidence. The petitioner bears the burden of proving by a 22 preponderance of the evidence that he is entitled to habeas relief. 23 Cullen, 563 U.S. at 181. The state courts’ decisions on the merits 24 are entitled to deference under AEDPA and may not be disturbed 25 unless they were ones “with which no fairminded jurist could 26 agree.” Davis v. Ayala, - U.S. -, 135 S. Ct. 2187, 2208 (2015). 27 The petitioner claims in this action each assert ineffective 28 assistance of counsel. Such claims are governed by Strickland v. 1 , 466 U.S. 668 (1984). Under , a petitioner 2 must satisfy two prongs to obtain habeas relief—deficient 3 performance by counsel and prejudice. 466 U.S. at 687. With respect 4 to the performance prong, a petitioner must carry the burden of 5 demonstrating that his counsel’s performance was so deficient that 6 it fell below an “objective standard of reasonableness.” Id. at 7 688. “‘Judicial scrutiny of counsel’s performance must be highly 8 deferential,’ and ‘a court must indulge a strong presumption that 9 counsel's conduct falls within the wide range of reasonable 10 professional assistance.’” Knowles v. Mirzayance, 556 U.S. 111, 11 124 (2009) (citation omitted). In assessing prejudice, the court 12 “must ask if the defendant has met the burden of showing that the 13 decision reached would reasonably likely have been different 14 absent [counsel’s] errors.” Strickland, 466 U.S. at 696. 15 III. Analysis 16 A. Ground One 17 In his first ground for relief, the petitioner asserts that 18 counsel on direct appeal was ineffective for failing to adequately 19 brief, and omitting meritorious arguments in support of, his claim 20 that his right to a fair trial was violated by Dr. Paglini’s 21 inappropriate and unnoticed expert testimony. (ECF No. 17 at 8). 22 On direct appeal, counsel raised a single issue: that Dr. 23 Paglini’s testimony was erroneously admitted. (Pet. Ex. 37). In 24 the brief, counsel argued that the notice was insufficient and Dr. 25 Paglini was not qualified to testify on grooming. (Id.) 26 The Nevada Supreme Court affirmed. In a 4-3 decision, the 27 Supreme Court rejected the petitioner’s argument that the notice 28 was insufficient, explaining that it was filed more than a month 1 before trial, identified that Dr. Paglini would testify as to 2 grooming, and included Dr. Paglini’s curriculum vitae 3 demonstrating experience relevant to his expertise. (Ex. 43 at 17- 4 18).3 The court continued: 5 Perez’s brief argument does not allege that the State 6 acted in bad faith or that his substantial rights were prejudiced because the notice did not include a report 7 or more detail about the substance of Dr. Paglini’s testimony. . . . Under the circumstances, we discern no 8 abuse of discretion in allowing Dr. Paglini to testify. 9 (Id. at 18). The court also concluded that (1) Dr. Paglini was 10 qualified to testify, (2) the testimony was relevant and, with one 11 exception, limited to Dr. Paglini’s area of expertise, and (3) Dr. 12 Paglini did not improperly vouch for the victim. (Pet. Ex. 43 at 13 6-17). In part of its analysis, the court explained:

14 As to unfair prejudice, Dr. Paglini’s testimony did not stray beyond the bounds set by this court and other 15 jurisdictions for expert testimony. Dr. Paglini generally addressed how grooming occurs and its purpose. 16 He then offered insight in the form of hypotheticals that were based on Perez’s conduct and indicated that 17 such conduct was probably grooming behavior. See Shannon v. State, 105 Nev. 782, 787, 783 P.2d 942, 945 (1989) 18 (providing that experts can testify to hypotheticals about victims of sexual abuse and individuals with 19 pedophilic disorder). He did not offer an opinion as to the victim's credibility or express a belief that she 20 had been abused. See Townsend, 103 Nev. at 118-19, 734 P.2d at 708-09. Dr. Paglini’s testimony therefore meets 21 the first component of the “assistance” requirement. 22 (Id. at 13). 23 In state postconviction proceedings, the petitioner argued 24 that appellate counsel was ineffective for failing to argue that 25 the State’s insufficient notice was in bad faith, that Dr. 26 Paglini’s testimony failed to help the jury understand the evidence 27

28 3 Citation is to ECF page number at the top of the page. 1 or determine an issue, and that the testimony caused him prejudice. 2 (Pet. Ex. 54 at 41-42, 49-50).4 The Nevada Supreme Court held:

3 [A]ppellant contends that his appellate counsel was ineffective by failing to argue on direct appeal that an 4 expert’s testimony failed to assist the jury in understanding the evidence or determining an issue and 5 that appellant was prejudiced by the testimony. Because this court nonetheless addressed these subjective issues 6 and specifically concluded that the expert’s testimony assisted the jury and did not prejudice appellant, . . 7 . there was no reasonable probability of a different outcome on appeal had counsel made these arguments. 8 Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113 (1996) (“To establish prejudice based on the deficient 9 assistance of appellate counsel, the defendant must show that the omitted issue would have a reasonable 10 probability of success on appeal.”). The district court therefore properly rejected this claim. . . . 11

Lastly, appellant argues that his appellate counsel 12 should have asserted that the State acted in bad faith in providing an inadequate notice of the expert’s 13 testimony. Appellant has not demonstrated prejudice, however, because this court concluded in Perez, 129 14 Nev., at 862-63, 313 P.3d at 870, that the expert witness notice was sufficient, and thus, any argument concerning 15 the State’s bad faith in providing an insufficient notice would not have altered the outcome. Further, 16 appellate counsel challenged the adequacy of the expert witness notice and appellant has not pointed to anything 17 that demonstrates the State’s bad faith or that he was prejudiced by the expert notice. [n.3: The dissent 18 concludes that appellate counsel’s failure to allege that the State acted in bad faith in providing its expert 19 witness notice warranted an evidentiary hearing because appellant was surprised by the expert’s testimony and 20 did not know that the expert would be presented with hypotheticals involving facts similar to the underlying 21 facts here. During a pretrial hearing, however, the State specifically informed appellant that the expert 22 would testify regarding grooming techniques and then be asked to apply his knowledge of those techniques to the 23 facts of this case.] Thus, the district court did not err in rejecting appellant’s claim of ineffective 24 assistance of appellate counsel. 25 (Pet. Ex. 57 at 2-4). 26 The petitioner asserts that Dr. Paglini’s testimony was 27 highly prejudicial because it employed hypotheticals directly

28 4 Citation is to original page of document. 1 mirroring the facts of the case, which suggested that the 2 petitioner had groomed R.B. and was akin to profile evidence, which 3 is generally inadmissible. In addition, he argues, the testimony 4 had the effect of rationalizing R.B.’s inconsistent testimony.5 He 5 argues that the case against him was weak, as evidenced by R.B. 6 and Maria Perez’s inconsistent and conflicting statements. The 7 petitioner argues that given the highly prejudicial nature of Dr. 8 Paglini’s testimony and the weak evidence supporting his guilt, it 9 is reasonably likely that at least one justice on direct appeal 10 would have voted to reverse his conviction if counsel had 11 appropriately briefed the appeal. 12 The state courts were not objectively unreasonable in 13 concluding that the petitioner had not shown a reasonable 14 likelihood of a different result if his counsel had made these 15 arguments. The majority justices concluded on postconviction 16 review that they would not have decided the appeal any differently 17 even if counsel had briefed the appeal as the petitioner asserts 18 he should have – either because they actually decided the issues 19 or because the petitioner’s claims were unsupported. This was a 20 reasonable conclusion. Many of the arguments the petitioner 21 asserts should have been raised were in fact raised in the amicus 22 brief and/or addressed directly by the court in its majority 23 opinion. While bad faith was not argued or decided by the court 24 on direct appeal, the postconviction court held that there was no 25 evidence of bad faith and that the petitioner was not surprised by 26 5 The petitioner additionally makes several arguments for the first time 27 in his reply. The court will not consider contentions raised for the 28 first time in the reply. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). 1 Dr. Paglini’s testimony. These conclusions were not objectively 2 unreasonable. Thus whatever the deficiencies of counsel’s 3 briefing, it is not reasonably likely that a better brief would 4 have changed the result. 5 In sum, the state courts’ conclusion that the petitioner 6 suffered no prejudice from the alleged deficient performance of 7 counsel is not contrary to, or an unreasonable application of, 8 clearly established federal law, nor is it an unreasonable 9 determination of the facts. Accordingly, the petitioner is not 10 entitled to relief on Ground One. 11 B. Ground Two 12 In his second ground for relief, the petitioner asserts that 13 trial counsel was ineffective for (1) “irrationally failing to 14 stipulate to the foundation of” a jail call made by the petitioner; 15 and (2) allowing an attorney to participate in the trial despite 16 having his license suspended for mental health reasons. (ECF No. 17 17 at 17). 18 i. Jail Call 19 Before trial began, the State advised the court that it would 20 be introducing the transcript of a phone call between the 21 petitioner and his wife, recorded while the petitioner was 22 incarcerated, and that it would need to call a witness from the 23 jail to authenticate the call because the defense was refusing to 24 stipulate to foundation. Defense counsel responded to this by 25 stating he was “not stipulating to anything.” (See Ex. 17 (Tr. 17- 26 18)). Defense counsel explained that he had several objections to 27 the phone call coming in but that he would continue to refuse to 28 1 stipulate even if the court otherwise deemed the call admissible. 2 (Id. at 18-22). 3 Later, defense counsel stated that he was not stipulating to 4 foundation because he was certain the jury would know or at least 5 suspect the calls were recorded while the defendant was in jail. 6 (See Ex. 19 (Tr. 181-83)). The court told counsel that the 7 recording was probably going to come in and to focus on whether he 8 wanted any prejudicial statements redacted therefrom. (Id. at 183- 9 86). 10 The next day, the court ruled that the call was coming in and 11 told defense counsel to decide whether to stipulate to foundation. 12 (Ex. 20 (Tr. 10)). Defense counsel replied, “I can’t help them 13 with their case, Judge.” (Id.) The court responded, “Actually, I 14 think it’s helping your client.” (Id. at 10-11). The court then 15 asked the petitioner whether he was “on board with that decision.” 16 (Id. at 11). After counsel and the petitioner spoke, the petitioner 17 invoked the Fifth Amendment. (Id.) The court advised that its 18 question did not implicate the Fifth Amendment and that she just 19 wanted to make sure the petitioner was on board because she 20 believed that counsel’s refusal to stipulate would be prejudicial 21 to the defense. (Id. at 11-12). Then, for the next forty-five 22 minutes, the court went back and forth with the petitioner and 23 counsel about whether the petitioner could refuse to answer the 24 question. (Id. at 12-39). At some point, defense counsel stated 25 that he did not think the State could get the call in without 26 causing reversible error. (Id. at 29). Eventually the court ceased 27 the discussion, concluding that she would assume that the 28 petitioner agreed with his counsel’s strategy. (Id. at 39). 1 During the testimony of the jail witness that followed, 2 defense counsel immediately moved for a mistrial on the grounds 3 that the jury now knew his client was incarcerated. (Ex. 20 (Tr. 4 90-92)). 5 In his state postconviction petition, the petitioner argued 6 that trial counsel was ineffective for failing to stipulate to the 7 foundation for the call, thus assuring that the jury would hear 8 from a State witness that the petitioner was incarcerated. The 9 Nevada Supreme Court addressed the petitioner’s claim as follows: 10 [C]ounsel’s decision not to stipulate to the foundation 11 for a jail phone call did not establish deficient representation as the decision was merely a trial 12 strategy and appellant was given the opportunity to contest that trial strategy, but chose not to do so. See 13 Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280- 81 (1996) (providing that a strategy decision “is a 14 tactical decision that is virtually unchallengeable absent extraordinary circumstances” (internal 15 quotations omitted)). [Thus], … appellant failed to establish a deficiency in his trial counsel's 16 representation. . . .” 17 (Pet. Ex. 57 at 3). 18 There is sufficient evidence in the record made during the 19 trial court proceedings to support the Nevada Supreme Court’s 20 conclusion that counsel’s refusal to stipulate to the foundation 21 for the call was strategic. Counsel stated that he was not going 22 to help the State put on its case, and that he believed 23 introduction of the petitioner’s incarceration status would be 24 grounds for reversal. Counsel further suggested he believed the 25 jury would surmise the call had been recorded while the petitioner 26 was in jail. The court cannot conclude that the Nevada Supreme 27 Court was objectively unreasonable in concluding that counsel’s 28 refusal to stipulate to foundation was a strategic decision within 1 the wide bounds of reasonable representation. Accordingly, the 2 petitioner is not entitled to relief on Ground Two(A). 3 ii. Suspended Attorney 4 In Ground Two(B), the petitioner asserts that trial counsel 5 was ineffective for allowing John Rogers to participate in his 6 representation despite the fact that Rogers’ license had been 7 suspended for mental health issues. (ECF No. 17 at 17). The 8 petitioner argues that Rogers “participated in bench conferences, 9 sat at the defense table, addressed the court, and even appeared 10 as counsel in the court documents and transcripts.” (Id. at 22). 11 The Nevada Supreme Court addressed this claim as follows:

12 [A]ppellant failed to include specific factual allegations that demonstrated that without the 13 unlicensed attorney’s participation in the trial, he would have received a more favorable outcome. Thus, he 14 failed to establish that the unlicensed attorney’s participation was deficient assistance of counsel by 15 either the unlicensed attorney or his trial counsel. 16 (Pet. Ex. 57 at 3). 17 The petitioner concedes it is unknown the extent to which 18 Rogers participated but asserts that where there is de facto 19 absence of counsel, prejudice can be presumed. The respondents 20 assert that the record suggests that Rogers primarily sat behind 21 the counsel table and took notes and that it was the petitioner’s 22 counsel who did everything during trial. In reply, the petitioner 23 argues that he was never given the opportunity to develop his claim 24 of prejudice on this claim and that the court should therefore 25 conduct an evidentiary hearing. 26

27 6 The court therefore need not, and does not, address respondents’ 28 alternative contention that the petitioner was not prejudiced by counsel’s conduct. 1 First, the petitioner has provided no legal or factual support 2 for his assertion that Rogers’ participation in his defense 3 resulted in a de facto deprivation of counsel. The petitioner was 4 represented by licensed counsel. Further, Rogers’ license was 5 suspended and not revoked. Under these circumstances, there is no 6 support for the finding that the petitioner suffered de facto 7 deprivation of counsel. See United States v. Hoffman, 733 F.2d 8 596, 599-601 (9th Cir. 1984). 9 Second, the petitioner has not established a reasonable 10 likelihood of a different outcome had Rogers not participated in 11 his trial. There is no evidence or specific factual allegation of 12 how Rogers influenced any events during the trial, much less a 13 compelling argument that the result of trial would have been 14 different had those events not occurred. The state courts were not 15 therefore objectively unreasonable in rejecting this claim. 16 Indeed, the petitioner concedes that his claim is unsupported 17 but argues that he is entitled to an evidentiary hearing to develop 18 the factual basis of his claim. For the reasons discussed infra, 19 the petitioner is not entitled to an evidentiary hearing on this 20 claim. 21 Accordingly, the petitioner is not entitled to relief on 22 Ground Two(B). 23 IV. Request for Evidentiary Hearing 24 Although the petition contains a request for an evidentiary 25 hearing, there is no argument provided in support of that request 26 in the petition nor is there a separately filed motion for an 27 evidentiary hearing. While the reply contains argument in support 28 1 of the request, the court will not consider arguments raised for 2 the first time in the reply. Zamani, 491 F.3d at 997. 3 Further, even if the court were to consider the petitioner’s 4 arguments, the request for a hearing would be denied, as the 5 petitioner has made no “colorable allegations that, if proved at 6 an evidentiary hearing, would entitle him to habeas relief.” 7 Williams v. Filson, 908 F.3d 546, 564–65 (9th Cir. 2018). 8 V. Certificate of Appealability 9 In order to proceed with an appeal, the petitioner must 10 receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); 11 Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 12 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 13 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must 14 make “a substantial showing of the denial of a constitutional 15 right” to warrant a certificate of appealability. Allen, 435 F.3d 16 at 951; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 17 483-84 (2000). “The petitioner must demonstrate that reasonable 18 jurists would find the district court’s assessment of the 19 constitutional claims debatable or wrong.” Allen, 435 F.3d at 951 20 (quoting Slack, 529 U.S. at 484). In order to meet this threshold 21 inquiry, the petitioner has the burden of demonstrating that the 22 issues are debatable among jurists of reason; that a court could 23 resolve the issues differently; or that the questions are adequate 24 to deserve encouragement to proceed further. Id. 25 The court has considered the issues raised by the petitioner, 26 with respect to whether they satisfy the standard for issuance of 27 a certificate of appealability and determines that none meet that 28 standard. Accordingly, the petitioner will be denied a certificate 2\| of appealability. VI. Conclusion 4 In accordance with the foregoing, IT IS THEREFORE ORDERED 5|| that the first amended petition for writ of habeas corpus (ECF No. 6|| 17) is hereby DENIED. 7 IT IS FURTHER ORDERED that the petitioner is DENIED a certificate of appealability. 9 The Clerk of Court shall enter final judgment accordingly and 10|| CLOSE this case. 11 IT IS SO ORDERED. 12 DATED: This 14th day of September, 2020. 13 a brine S ft 45 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28